All Major and Minor Changes in India’s New Criminal Laws: BNS, BNSS, and BSA Explained

Introduction

India’s criminal justice system has undergone a major overhaul with the introduction of three new legislative bills in 2023, which seek to replace the previous laws. These laws are: –

1. Bhartiya Nyaya Snhita (BNS) 2023- Replaces the Indian Penal Code, 1860 (IPC).
2. Bhartiya Nagarik Suraksha Snhita (BNSS) 2023- Replaces the Code of Criminal Procedure, 1973 (CrPC).
3. Bhartiya Sakshya Adhiniyam (BSA) 2023- Replaces the Indian Evidence Act, 1872.

The following is a detailed comparison of the new laws with their predecessors:

Bhartiya Nyaya Sanhita (BNS), 2023 vs Indian Penal Code (IPC), 1860.

The BNS replaced the IPC, which was drafted during British colonial control. This new legislation, proposed in 2023, represents the evolving cultural, political, and technical context of contemporary India. The IPC has served India for over 150 years, is long overdue for a complete reform. The BNS is intended to bring Indian criminal law up to speed with current challenges, eliminate archaic sections, and implement new methods to combat modern forms of crime. This legislation focuses on streamlining and speeding up the criminal justice system, increasing sanctions for some significant offenses, and decriminalizing behaviours that are outmoded or unnecessary in today’s setting. The reforms aim to make the judicial system more efficient and humane justice system.

IPC and It’s Key Problems

India’s IPC, enacted in 1860 during British rule, was a revolutionary piece of legislation for its time, bringing different regions under a single legal framework. However, the IPC was established on Victorian English concepts that were sometimes disconnected from Indian socioeconomic reality. Despite several updates over the years, the core of the IPC remained unchanged, and many sections became outdated. With a fast-changing society, technological advancements, and the advent of new sorts of crime, India needed to modernize its criminal laws. The primary difficulties with the IPC were:

• Many sections of the IPC enforced penalties for acts that are no longer relevant in today’s society, while newer crimes, such as cybercrime and organized terrorism, were not adequately addressed.
• Several sections of the IPC overlapped with other laws, leading to confusion and inefficiencies in law enforcement.
• Some legislation show that colonial authorities valued control and suppression over democratic concepts such as liberty, equality, and justice.

It also aligns with contemporary issues, including technological advancements and societal changes which is seen in issues such as:

• Focus on Technology and Cybercrime:
• The IPC lacked specific provisions for cybercrimes, which has become increasingly widespread with modern technology.
• The BNS has detailed sections on cybercrime, data theft, and digital offenses, making the law more relevant in today’s digital environment.
• Mob Lynching and Organized Crime:
• The IPC does not specifically address mob lynching or organized crime.
• The BNS criminalizes mob lynching and introduces harsher penalties for organized crime and terrorism.
• Focus on Sexual Offenses:
• Sexual crimes, including rape, are amended to reflect cultural developments, including expanded definitions of consent and sexual assault.
• Capital Punishment:
• Both statutes include the death penalty, the BNS emphasizes that it can be used in the rarest of rare cases.
• Simplification of Language:
• In contrast to the complex and old IPC language, the BNS language is simplified for general understanding.

Objectives of the BNS

BNS has 358 sections organized into 20 chapters, but IPC has 511 sections divided into 23 chapters. Furthermore, definitions from Sections 6 to 52 of the IPC have been combined into two sections, Section 2 on ‘definitions’ and Section 3 on ‘generic explanations’ under Chapter I of BNS.

The primary goal of the act is to ensure that India’s criminal justice system is compatible with both the constitutional mandate and the country’s evolving sociopolitical realities. Its key objectives include:

• Modernization of Penal Law: Adapting to new offenses resulting from technological, urban, and social developments.
• Humanization of Punishment: Ensuring punishments are proportional to the offense, in accordance with modern human rights principles.
• Efficiency in Law Enforcement: Streamlining procedures can speed up investigations and trials, solving the issue of delayed justice.
• Victim-Centric Approach: Improving protection and compensation procedures to prioritize victims’ rights and interests.
• Decriminalization and Reduction: Outmoded criminal provisions that are no longer deemed crimes, as well as restricting misuse potential.
• Tackling New Forms of Crime: Introducing stringent regulations to combat emerging threats like as cybercrime, terrorism, and organized crime.

The significant changes are as follows: –

1. Deletion of Definitions under IPC

Many definitions in the BNS have been streamlined and are now organized alphabetically under clause 2. Gender has been redefined, and in addition to male and female gender, transgender people are now included in the definition of ‘Gender’ under Section 2(10) of the BNS. Definitions have been updated; for example, the word ‘British Calander month or year’ in BNS has been changed to ‘Gregorian Calander month or year’, the phrase ‘corporeal’ used in IPC has been removed from BNS, and the word ‘juryman’ has been removed because the jury system no longer exists in India. The definition of expressions such as “queen,” “British India,” “servant of the government,” and “Government of India” as stated in the IPC have been eliminated from BNS. The word ‘document’ used in Section 2(8) of the BNS has been modified to correspond with the definition of ‘document’ in clause 2(c) of the BSA, 2023.

• Sedition (Section 124A IPC) is no longer an offence under the BNS. Instead, there are new offenses under Sections 152 and 197 (1)(d) of BNS for the following acts:

1. Attempting to incite secession, armed revolt, or subversive acts,
2. Encouraging separatist activity,

• Endangering India’s sovereignty, unity, and integrity,

1. Providing false or misleading information that threatens India’s sovereignty, unity, integrity, and security.[1]

These offences might involve the exchange of words or signs, electronic communication, or the use of financial resources. The phrases “or through electronic communication” have been included to disseminate certain activity.

• Adultery (Section 497 IPC) has been decriminalized as it is now considered not an offense under the BNS. This is because of the Supreme Court’s ruling in Joseph Shine v. Union of India found that section 497 of the IPC violated Articles 14, 15, and 21 of the Constitution.
• Section 377 IPC, which deals with non-consensual sexual acts, has been removed from the BNS. However, Section 377 still applies to cases involving non-consensual sexual acts with adults, all sexual acts with children, and bestiality. The BNS does not include provisions for non-consensual sexual offenses against males, females, or transgender individuals, and bestiality has been deemed illegal, meaning that unnatural sexual acts with people (sodomy) or animals (bestiality) are no longer considered criminal offenses.
• The BNS no longer includes the charge of ‘attempt to commit suicide’ (Section 309 IPC), aligning it with the Mental Healthcare Act of 2017, which views suicide as a mental health issue rather than a criminal infraction. However, a new clause in Section 226 of the BNS now criminalizes any attempt to commit suicide with the goal of hindering or impairing a public worker’s ability to carry out their official responsibilities.
• Lurking House Trespass by Night (Section 444 IPC), housebreaking by Night (Section 446 IPC) and construction of reference to transportation (Section 53A) has been deleted in BNS.

2. New Offences under BNS

The BNS has also introduced several new offences as the following:

• According to Section 304 of the BNS, snatching is defined as the act of grabbing, securing, or removing moveable property from another person’s possession
• A new provision in Section 69 of the BNS creates an infraction for engaging in sexual intercourse through deceit. Deceptive practices may include persuading or fraudulently offering employment, promotion, or marriage while concealing one’s genuine identity.
• The BNS has now made it a criminal violation for a “registered medical practitioner” to cause death by carelessness during medical treatment, which was not particularly addressed under the former section 304A of the IPC, which dealt with general negligence.
• Terrorism is defined as actions that threaten national unity, integrity, and security, inspire fear in the public, or disturb public order.
• Organized crime includes abduction, extortion, and cybercrime carried out by or on behalf of a criminal syndicate.
• Petty organized crime is now considered a criminal offense. Individuals who, as part of a group or gang, individually or collectively, participate in stealing, snatching, fraud, unlawful ticket sales, unauthorized gambling, selling of public test papers, or other similar illicit actions are deemed to have committed minor organized crime.
• Mob lynching, defined as the murder of five or more people based on identifiable characteristics such as caste, language, or personal views, is punishable by life imprisonment or death, as well as a fine.
• Section 73 of the BNS prohibits the printing or publication of trial court proceedings involving sexual crimes without prior court consent. This includes rape, sexual intercourse by a husband on his wife during separation, sexual intercourse by an authority figure, deceptive sexual intercourse, and gang rape.
• BNS defines recruiting, employing, or enlisting a child to commit a crime as a new offense. Previously, the IPC included no provision for prosecuting those who used children to commit crimes. Section 95 of the BNS was adopted to make it unlawful to recruit, hire, engage, or utilize a child for sexual exploitation or pornography, as if the child had committed the offense themselves.
• Abetting the commission of a crime in India from outside the nation is a new offense under the BNS.
• Murder by a life convict is a new offense under BNS. The existing section 303 of the IPC, which dealt with the punishment for murder by a life-convict, was declared illegal by the Supreme Court since it only allowed for one death sentence and offered the courts no discretion. Section 104 of the BNS now allows for two possible penalties: death or life imprisonment, removing the previously indicated restriction.

3. Gender Neutrality under BNS

Sections 354 B and 354C of the IPC, which encompass offenses such as assault or employing unlawful force on a woman with the aim to disrobe her, as well as voyeurism under Sections 76 and 77 of the BNS, now use the gender-neutral phrase ‘anyone’ instead of ‘any male person’. In offences relating to harbouring deserter, the word “wife” is replaced by “spouse” to make the legislation gender neutral. The term “minor girl” in Section 366A of the IPC has been replaced by the word “child” in Sections 93 to 99 of the BNS, which now encompass both male and female minors under the age of 18 who are obtained for sexual exploitation. Additionally, the act of procurement has been criminalized.

4. Increased penalties, fines and introduction of mandatory minimum punishment under BNS

The BNS has enhanced the penalty for 33 offenses, including murder, hit-and-run, and causing death via carelessness. Furthermore, the BNS has imposed mandatory minimum sentences for 23 offenses, including purchasing a child for prostitution, engaging in organized crime, committing terrorist acts, obstructing a public worker from performing their duties, impersonating a public servant, and theft, among others.

5. Community Service as a Punishment under BNS

The BNS has introduced community service as a form of punishment under section 4(f) of BNS for the first time for the six offenses of:

• Public servants engaged in illegal trade under section 202 of the BNS.

 Non-appearance in response to a proclamation released under subsection:

• Section 84 of BNSS is penalized under Section 209 of BNS.
• Attempt suicide to prevent public servants from exercising their authorized powers under section 226 of the BNS.
• Petty theft with first-time conviction under section 303(2) of BNS.
• Public misbehaviour by an inebriated person under section 355 of BNS.
• Defamation under Section 356 of the BNS.

Despite the fact that community service is required as a penalty for the six minor violations outlined, the BNS does not explain or define what constitutes ‘community service’.

6. Other Relevant Changes

The IPC has been updated with new terminology, age-based parameters have been removed, the term “unsound mind” has been replaced with “mental illness,” technology and digital media have been incorporated, transgender has been added to Section 2(10), life imprisonment has been defined, and the definitions of theft and mischief have been expanded. Furthermore, steps are in place to combat bogus news. Section 197 of the BNS states that anybody who creates or disseminates false or misleading material that jeopardizes India’s sovereignty, unity, integrity, or security may face up to three years in jail, a fine, or both.

Major Changes in the BNS

Mob Lynching:

• IPC: No specific provision for mob lynching.
• BNS: Introduces severe penalties for mob lynching, addressing a critical gap in the IPC, which had no standalone provision for such crimes. Mob lynching will now be punished with either life imprisonment or the death penalty.
• Significance: A major change aimed at curbing a growing societal menace​.

Terrorism:

• IPC: Vaguely defined provisions for terrorism, often covered under various sections.
• BNS: Provides a separate section on terrorism, laying out detailed definitions and harsher punishments, including life imprisonment and capital punishment for acts of terrorism.
• Significance: This update aligns India’s criminal code with modern global anti-terrorism frameworks​.

Death Penalty:

• IPC: The death penalty was reserved for the most heinous offenses, such as murder (Section 302) and terrorism, with judges granted the authority to execute the punishment in the “rarest of rare” circumstances.
• BNS: The death penalty is preserved, albeit with more stringent judicial oversight. For example, in circumstances of gang rape of kids, the law requires the courts to meet severe conditions before imposing the death penalty.
• Significance: The death penalty remains largely unchanged, but procedural safeguards have been strengthened.

Death Penalty for Rape of Minors:

• IPC: Rape of minors under Section 376 prescribed life imprisonment or a minimum of 10 years.
• BNS: Introduces mandatory death penalty for rape of minors (under 12 years of age), in cases where the crime is particularly heinous.
• Significance: This is a stringent measure to deal with rising instances of child sexual abuse​.

Rape and Sexual Assault:

• IPC: Rape was defined under Section 375 of the IPC, with limited acknowledgment for other types of sexual assault. The term was frequently criticized for being too limited and unable to capture the intricacies of current sexual offenses.
• BNS: The BNS broadens the definition of rape to include more types of sexual assault, such as digital and non-physical sexual abuse. Section 63 includes penalties for sexual offenses committed by electronic communication, such as online harassment, voyeurism, and revenge pornography.
• Significance: This is a significant improvement, addressing modern forms of sexual violence and offering broader protection to victims.

Gang Rape:

• IPC: The IPC imposed severe punishments for gang rape but did not require time-bound trials or specified procedures for victim compensation.
• BNS: The new legislation stipulates time-bound trials for gang rape cases to expedite justice and prevent delays in adjudication. There are additional measures for victim protection and assistance.
• Significance: The inclusion of time-bound trials and victim protection measures demonstrates a maturing approach.

Sexual Harassment at Workplace:

• IPC: While Section 354A of the IPC covers sexual harassment that violates a woman’s modesty, no explicit provision exists for workplace harassment.
• BNS: The BNS includes measures to address sexual harassment in the workplace, including digital harassment (e.g., improper texts or social media activity). Penalties are stricter, and the scope is broader.
• Significance: Addressing workplace harassment and the challenges of regulating online behavior.

Capital Punishment in the “Rarest of Rare” Cases:

• IPC: Provided for capital punishment, but the criteria were often unclear.
• BNS: Clarifies capital punishment guidelines, making its application limited to the “rarest of rare” cases, ensuring stricter oversight.
• Significance: This aligns the use of the death penalty with constitutional mandates and judicial interpretations​.

Sedation and Secessionism:

• IPC: Sedition was covered under Section 124A.
• BNS: Abolishes Section 124A (Sedition) but introduces new provisions for secessionism and subversive activities that are clearly defined and differentiated from free speech.
• Significance: This is one of the most talked-about changes, aimed at preventing misuse of sedition laws while ensuring national security is not compromised​.

Cybercrime and Technology:

• IPC: There are no particular regulations for cybercrime.
• BNS: The BNS addresses cybercrimes such as data theft, hacking, cyberstalking, and cyberbullying, recognizing the digital era and online risks.
• Significance: This aligns criminal law with technology improvements and the increase of cybercrime.

Organized Crime:

• IPC: No specific provisions dealing with organized crime.
• BNS: The BNS imposes stricter penalties for organized crime and gang-related actions.
• Significance: The goal is to address the growing menace of organized crime and terror networks.

Cybercrime and Online Fraud:

• IPC: The IPC, created in the 19th century, does not include cybercrime or digital offenses. General provisions such as fraud (Section 420) were frequently employed, however they were ineffective for current digital crimes.
• BNS: The BNS addresses cybercrime and online fraud, recognizing the internet’s significance in criminal activity. It makes provisions for offenses such as identity theft, hacking, and online financial fraud.
• Significance: This reform aligns Indian criminal law with the digital era, guaranteeing effective prosecution of cybercrimes.

Attempt to Commit Suicide:

• IPC: IPC Section 309 criminalizes attempting suicide and imposes penalties for failed attempts.
• BNS: The Mental Healthcare Act of 2017 decriminalizes suicide attempts and prioritizes mental health help above criminal punishment.
• Significance: This is a humane and progressive reform, acknowledging the mental health challenges faced by individuals.

Hate Speech:

• IPC: Section 153A of the IPC vaguely addresses hate speech, but there are no explicit prohibitions for internet or contemporary communication platforms.
• BNS: The BNS provides systematic measures to counteract hate speech, particularly on digital platforms. It criminalizes encouragement to violence and hate speech while acknowledging the risks posed by internet platforms.
• Significance: This upgrade is crucial due to the increase in hate speech and communal incitement on social media platforms.

Acid Attacks:

• IPC: Recognized as a crime, but not with separate, clear guidelines under IPC.
• BNS: Expands the scope of acid attacks and imposes harsher penalties, as well as required compensation for victims.
• Significance: This improvement is critical since the prior system had no clear standards for it.

Minor Changes in the BNS

Language Modernization:

• IPC: Written in archaic, colonial-era English with complex legal terminology.
• BNS: Uses simplified language for better understanding by the public and law enforcement agencies.
• Significance: Makes the law more accessible to common people and improves legal clarity​.

Reduction of Penal Provisions for Minor Offenses:

• IPC: Imposed harsh penalties for minor offenses.
• BNS: Reduces penalties for several minor offenses, focusing more on community service, fines, and rehabilitation instead of long jail terms.
• Significance: This is part of a wider shift towards decriminalization of minor infractions and focusing on rehabilitation​.

Focus on Women’s Safety:

• IPC: Sexual offenses were covered under several sections, but many provisions were inadequate.
• BNS: Enhances protections for women, updating definitions of sexual harassment, stalking, voyeurism, and domestic violence.
• Significance: Modernizes the law in accordance with present-day societal norms​.

New Definition of ‘Rape’:

• IPC: Had a limited and somewhat outdated definition of rape.
• BNS: Expands the definition of rape, bringing it in line with current gender justice standards, including marital rape (with some exceptions).
• Significance: The broader definition reflects modern understanding of gender and sexual crimes​.

Compensation for Victims:

• IPC: Provided minimal provisions for victim compensation.
• BNS: Strengthens the focus on victim compensation, ensuring that victims, especially of heinous crimes, receive better reparations and state support.
• Significance: This is a progressive change, ensuring that the victim’s rights and needs are taken into account​.

Rights of Accused:

• IPC: Did not clearly delineate rights for the accused in certain areas.
• BNS: Provides stronger protections for the rights of the accused, ensuring due process and fair trials, including new measures for speedy trials.
• Significance: This ensures that legal procedures respect human rights and international standards for the accused​.

Dowry Death:

• IPC: Section 304B provided punishment for dowry deaths where a woman died under suspicious circumstances related to dowry demands. However, investigations into such cases often faced delays.
• BNS: The BNS enhances the provisions related to dowry deaths, with a focus on faster investigations and stricter penalties. It seeks to expedite the resolution of cases involving dowry-related violence.
• Significance: The change strengthens enforcement but retains the original intent of the law.

Theft and Burglary:

• IPC: Theft (Section 378) and burglary (Section 457) were penalized with fixed terms, with no regard for the size of the offense or involvement in an organized crime syndicate.
• BNS: The BNS penalizes theft and burglary more severely, especially where organized crime or technology is involved. For example, theft involving substantial sums of money or sensitive information (such as data breaches) carries harsher penalties under the BNS.
• Significance: While penalties have increased, the law’s essential framework remains same.

Dowry Death:

• IPC: Section 304B imposed penalties for dowry deaths in which a lady died under suspicious circumstances connected to dowry demands. However, such inquiries were frequently delayed.
• BNS: The BNS strengthens the regulations governing dowry fatalities, with an emphasis on speedier investigations and heavier sanctions. It aims to speed up the settlement of instances involving dowry-related violence.
• Significance: The revision increases enforcement while retaining the original aim of the statute.

Insult to Modesty of Women:

• IPC: Section 509 dealt with words, gestures, or acts meant to offend women’s modesty. However, it was often regarded as referring to actual areas.
• BNS: The BNS broadens the scope to include digital venues where women may face harassment, such as online shaming, cyberbullying, or defamation on social media. This indicates the increasing frequency of internet harassment.
• Significance: The principle stays unchanged, but it is broadened to include digital forms of insult.

Blasphemy Laws:

• IPC: Sections 295 to 298 dealt with crimes against religious emotions, however the IPC failed to strike a clear balance between safeguarding religious sentiments and preserving free expression.
• BNS: The BNS preserves religious feeling protection but adds safeguards to ensure that laws are not used to silence valid criticism or restrict freedom of expression.
• Significance: The law still protects religious emotions, but with stronger safeguards against abuse.

Other Notable Changes

1. Criminal Defamation:

• IPC: Section 499 addressed criminal defamation, which was frequently condemned for being overly wide and infringing on the right to free expression. It was commonly employed by public leaders to suppress criticism.
• BNS: The BNS keeps criminal defamation but incorporates protections to prevent it from being used to unfairly restrict free expression. To avoid misuse of this statute, clearer rules for prosecuting defamation have been established.
• Significance: The essential principle of criminal defamation remains, but the legislation has been fine-tuned to prevent misuse.

2. Rehabilitation Over Punishment:

• IPC: Focused heavily on punishment, even for minor offenses.
• BNS: Introduces a focus on rehabilitation, especially for first-time offenders and youth, promoting alternative forms of sentencing like counselling and community service​.

3. Bail and Detention Reforms:

• IPC: Detention provisions and bail laws were outdated and often led to unnecessary incarcerations.
• BNS: Introduces reforms in bail laws to avoid overcrowding in prisons and ensure that only serious offenders are detained, particularly emphasizing speedy bail procedures.
• Significance: This is an effort to address the issue of overcrowded jails and unnecessary detentions​.

Overview of BNS

Although the BNS has made significant great strides, there are certain issues that may be deemed downsides to the law. Certain criminal definitions and classifications are not properly expressed or arranged, such as the introduction of community service as a penalty with no clear extent or type specified. The BNS’s definitions of terrorism and minor organized crimes are extremely broad and lacking in detail. Another area of difficulty is the age threshold for victims of minor offenses, particularly when contrasted to the POSCO Act’s standards. For example, in situations of gang rape, the duration of imprisonment varies according to whether the victim is above or under the age of 18, as mentioned in Section 70. However, the duration of imprisonment for rape under Sections 64 and 65 varies depending on whether the victim is under 12, 12 to 16, or above 16.

Unfortunately, there are worries regarding overlapping provisions in the BNS. For example, Section 354A of the BNS, which handles sexual harassment, intersects with other provisions dealing with sexual offenses such as rape and insulting a woman’s modesty. The BNS addresses terrorist acts, as does the Unlawful Activities (Prevention) Act of 1967, and both the BNS and state laws handle organized crime. The current legislation still suffers with gender inclusivity, failing to fully safeguard the rights of the LGBTQIA+ community.

 Furthermore, despite the fact that technology plays an increasingly important part in our everyday lives, there is still a noteworthy paucity of law addressing virtual world crimes, data protection violations, AI-related offenses, and cybercrime rules.

Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023 vs Code of Criminal Procedure (CrPC), 1973.

The BNSS is designed to replace the CrPC of 1973, which outlines the procedure for the investigation of crime, collection of evidence, apprehension of suspected criminals, determination of guilt, and imposition of penalties. The BNSS aims to make procedural law more citizen-friendly, efficient, and transparent, with an emphasis on quick justice and accountability for law enforcement agencies. The BNSS demonstrates India’s commitment to revising its criminal procedural legislation to meet current demands, increase efficacy, and ensure timely justice delivery. This law seeks to solve long-standing difficulties plaguing the Indian legal system, such as trial delays, investigative shortcomings, victim rights protection, and individual liberty preservation. The CrPC, which followed the colonial-era CrPC of 1898, was enacted to provide a consistent framework for criminal procedures across the country.

The Issues of CrPC

Despite being an important step toward reforming criminal law in post-independence India, the CrPC of 1973 retained many characteristics of the colonial legal system. As time progressed, several flaws and inefficiencies became apparent:

• Delayed Trials: The slow pace of justice delivery in India has been a major concern, with many cases taking years, even decades, to reach resolution. This not only results in prolonged suffering for the victims but also causes undue hardships to undertrial prisoners.
• Undertrial Prisoners: A significant portion of India’s prison population consists of undertrial prisoners, many of whom have spent more time in custody than they would have had they been convicted of their alleged crimes. This is a glaring flaw in the existing system.
• Technological Advancements: The CrPC, which was developed before to the internet and current forensic science, has failed to address the expanding difficulties of cybercrime, financial fraud, and digital evidence collecting.
• Protection of Rights: While the CrPC provides several safeguards for the accused, it has been criticized for failing to properly protect victims’ rights, notably in situations of violent crime, sexual assault, and crimes against minors.
• Inefficiency in Law Enforcement: The CrPC does not adequately address the modernization of police forces and investigative agencies, leaving them ill-equipped to handle the rising tide of complex crime.

Objectives of the BNSS

The BNSS aims to bring about a much-needed transformation in India’s criminal procedure, with the following key objectives:

• Expediting Justice: One of the central goals of the BNSS is to reduce delays in criminal trials and investigations, ensuring faster justice for both victims and the accused. This is especially crucial in a nation where a backlog of cases might mean years of waiting for a resolution.
• Victim-Centric Justice: The BNSS prioritizes victim-centered justice, with an emphasis on their rights and needs. The new laws are intended to improve victims’ capacity to get justice, compensation, and protection throughout the judicial process.
• Protecting the Rights of the Accused: While ensuring that victims’ rights are safeguarded, the BNSS also strengthens the protections for individuals accused of crimes, ensuring that their fundamental rights are not violated, particularly in the case of wrongful arrests or prolonged detention without trial.
• Technological Integration: The BNSS incorporates current technology into criminal investigations, evidence collection, and judicial hearings. It understands the importance of digital evidence, surveillance technologies, and forensics in modern criminal investigations.
• Balancing Public Safety with Civil Liberties: The new legislation seeks to protect both public safety and civil liberties by empowering law enforcement to tackle criminal conduct while adhering to legal norms.
• Reducing Overcrowding in Jails: One of the BNSS’s primary goals is to solve the issue of jail overcrowding by focusing on persons awaiting trial and lowering the number of people detained in custody without being convicted. This will include improving the bail procedure, speeding up court hearings, and providing procedural protections.

The significant changes are as follows: –

1. Procedural Evolution

India has long used the CrPC, which is based on the colonial-era Code of Criminal Procedure (1898). However, the intricacies of modern criminal justice necessitate a more efficient and successful strategy. While the CrPC provided a solid framework for criminal proceedings, it frequently failed to keep up with the changing requirements of the judicial system. The BNSS, with an emphasis on speed, efficiency, and public safety, implements important reforms aimed at streamlining procedures, lowering trial lengths, and improving the police’s investigation skills.

2. Clarity in Some Procedures

The new code sets and adjusts the criteria for identifying persons who will be handled as comparable offenders. Previously, according to Section 82(4) of CrPC, which was introduced to the code by the 2005 Amendment, someone can be branded a ‘Proclaimed offender’ for only nineteen specific offenses under IPC sections. This resulted in scenarios in which persons who repeatedly avoided judicial processes of summons/warrant for any other infraction under the general criminal code of the IPC or any other special legislation could not be proclaimed offender. The BNSS eliminates the list, and persons accused of crimes punishable by more than ten years in prison or other specified offenses are henceforth designated as proclaimed criminals and subject to a lengthy procedure and trial as provided in Section 356 of the BNSS.

3. Time-Limited Investigation and Trial Process

The BNSS establishes time restrictions for research and trials, which is a critical step toward addressing the ongoing problem of delayed justice. Investigative authorities and courts must now adhere to defined timelines for each stage of a criminal case. To avoid needless delays, the charge sheet must be provided within a certain timeline, and trials must be completed within a reasonable timeframe. This provision not only assists victims who have suffered as a result of delays, but it also aims to prevent undertrial offenders from being held in jail for protracted periods of time while awaiting trial.

4. Digital Evidence and Technology Integration

In light of the growing relevance of digital evidence in criminal investigations, the BNSS allows the use of technology in different sectors of the judicial system. This enables law enforcement to use electronic monitoring, digital tracking, and forensic evidence in their investigations, as outlined in BNSS Sections 63 and 173. These parts also include rules for the electronic issuing and delivery of summonses, which must be validated using the Court’s seal or digital signature. Furthermore, it introduces the idea of Zero FIR and allows for the submission of FIRs by electronic communication (e-FIR), with the complainant’s signature required within three days.

Furthermore, Section 105 of the BNSS supports electronic documentation of witness testimony and permits for the use of video conferencing in court hearings. This is especially useful when witnesses or defendants cannot be physically present in court. The incorporation of technology is designed to improve the efficacy of the criminal justice system and reduce procedural bottlenecks. Other digitally accessible activities include:

• Section 64(2) of BNSS, which corresponds to Section 62 of CrPC, now allows for digital service of summons. Electronically served summons and their digital communication are likewise regarded genuine under BNSS Sections 70(3) and 71(2).
• Issuing summons/warrants as per Section 227 of BNSS, which corresponds to Section 204 of CrPC.
• Executive magistrates’ notices under Section 134 of the CrPC and Section 153 of the BNSS can now be served electronically.
• BNSS Sections 193(8) and 230 provide for digital submission of police reports and investigation-related documents under Sections 173(7) and 207 of the CrPC.
• Order of confirmation of Death Sentence under Section 412 of BNSS or Section 371 of CrPC.
• Charges are read to the accused at Sessions Trial under Section 251(2) of BNSS, which corresponds to Section 228(2) of the CrPC.

The CrPC neglected to incorporate modern technical resources, relying instead on obsolete forms of communication and record-keeping. The BNSS’s embrace of technology represents a significant advancement, enhancing the accessibility and efficiency of criminal proceedings.

5. Streamlining the Bail Process

The BNSS reforms the bail system in an effort to reduce the number of undertrial convicts in Indian jails. The new laws make it easier to give bail for minor offenses, and judges must now follow certain criteria when deciding whether to release someone. Bail is governed by BNSS Section 483. According to current BNSS provisions, an individual facing investigation, inquiry, or prosecution for several offenses or in multiple cases would not be granted bail by the Court. The new Section 482 of the BNSS excludes the requirements listed in Section 438(1) for granting anticipatory bail under Section 438(2) of the CrPC. Sections 438(1A) and (1B) also lack provisions.

6. Enhancing Witness Protection and Streamlining Trials

The lack of an adequate witness protection system under the CrPC frequently resulted in witness intimidation and biased trials. The BNSS believes that ensuring witness safety is critical to improving conviction rates and promoting fair trials. The BNSS Section 398 mandates the preparation and notification of a witness protection scheme by every State Government, addressing a long-standing gap identified by various Law Commission reports. Furthermore, BNSS Sections 258 and 346 establish severe time restrictions for several phases of the trial process, including a provision requiring decisions to be made within 30 days of the conclusion of arguments, with a 45-day extension available under certain circumstances. It also includes daily trials and queries. This tackles the CrPC’s lack of such timelines often led to prolonged trials and delayed justice. By enforcing specific timelines, the BNSS hopes to speed up the judicial process and ensure that justice is delivered more quickly.

7. Expanding Authority: Special Executive Magistrates

According to BNSS Section 15, the State Government may designate any police officer (ranking no lower than Superintendent of Police) as a Special Executive Magistrate in addition to an Executive Magistrate. Executive Magistrates have less obligations under the CrPC (section 21), resulting in procedural delays. The BNSS enhances this power, allowing for more agility and efficacy in dealing with specific situations.

8. Imposing Fines

The CrPC’s provisions for fines were out of date, with relatively modest levels that did not reflect modern economic realities. The BNSS reform changes punishment levels to better reflect current standards and introduces community service as a more progressive alternative to traditional sanctions. Under BNSS Section 23, a Magistrate of the First Class’s ability to issue penalties increases from Rs. 10,000 to Rs. 50,000, while that of a Magistrate of the Second Class increases from Rs. 5,000 to Rs. 10,000. Furthermore, these Magistrates are now able to impose community work as a form of punishment.

9. Other Relevant Changes

The BNSS has several parts, including some new rules that address current concerns and eliminate obsolete ones. For example, the BNSS omits sections relating to Metropolitan Magistrates as well as specific offices such as Judicial Magistrate of the Third Class and Assistant Sessions Judge, in order to achieve better judicial consistency.

Major Changes in BNSS

Speedy Trials and Time-Bound Procedures:

• CrPC: No specific timeline for the completion of trials, leading to delays and a backlog of cases.
• BNSS: Introduces time-bound trials, especially for serious crimes. All trials involving heinous offenses are required to be completed within two years.
• Significance: A major reform aimed at addressing judicial delays and reducing case backlogs​.

E-FIRs and Use of Technology:

• CrPC: FIRs (First Information Reports) were filed manually, and there were limited provisions for the use of technology in criminal procedures.
• BNSS: Introduces provisions for e-FIRs for specified categories of offenses and encourages the use of technology in filing complaints, conducting investigations, and submitting evidence (e.g., digital records, videos).
• Significance: A significant step towards modernizing law enforcement and ensuring easy access to the justice system, especially for marginalized communities​.

Citizen’s Rights During Arrest and Detention:

• CrPC: Basic provisions for the rights of the accused, including information on the grounds of arrest and the right to consult a lawyer.
• BNSS: Strengthens the protection of the accused, mandating that family members be informed immediately of an arrest. Also, all arrests must be documented digitally, and detention procedures are further regulated.
• Significance: Enhances transparency during arrests and ensures accountability for law enforcement​.

Bail Reforms:

• CrPC: Bail was granted based on rigid rules, often leading to overcrowding in jails and the unjust detention of minor offenders.
• BNSS: Streamlines bail procedures, particularly for non-cognizable offenses, and ensures that bail applications are processed within a specified timeframe. Non-serious offenders may now get bail more easily, reducing unnecessary detentions.
• Significance: A major shift towards reducing unnecessary pre-trial detentions and prison overcrowding​.

Provision for Forfeiture of Property for Fugitive Offenders:

• CrPC: Limited provisions to confiscate the property of fugitives.
• BNSS: Expands provisions for confiscation of property in cases where an accused becomes a fugitive, including organized crime, terrorism, and money laundering cases.
• Significance: This ensures that absconders or criminals who flee the country cannot enjoy the proceeds of their crimes​.

Witness Protection and Anonymity:

• CrPC: No specific witness protection provisions.
• BNSS: Introduces provisions for witness protection, including keeping witnesses’ identities confidential, ensuring their physical safety, and providing relocation if necessary.
• Significance: A major change aimed at protecting witnesses in sensitive or dangerous cases, encouraging people to testify without fear of retribution​.

Community Policing and Alternative Dispute Resolution (ADR):

• CrPC: Limited scope for ADR and community involvement.
• BNSS: Emphasizes community policing and encourages alternative dispute resolution mechanisms for minor offenses, allowing certain cases to be resolved without formal court proceedings.
• Significance: This change is designed to reduce the burden on courts and foster local solutions to disputes​.

Grounds for Arrest:

• CrPC: Allows for arrest on a variety of grounds, with considerable ambiguity that may lead to misuse.
• BNSS: Defines clearer and more explicit reasons for arrest, strengthens guarantees against arbitrary detention, and emphasizes non-custodial solutions for small violations.
• Significance: Reduces the possibility of unlawful arrests while upholding procedural rights.

Section 41A Notices of Appearance:

• CrPC: Summons for presence were occasionally issued inconsistently to persons who did not require arrest.
• BNSS: Section 41A notifications must be issued for violations punished by less than seven years, with summons required prior to arrest and warrant issuance if ignored.
• Significance: Reduces needless arrests while emphasizing a rights-based approach.

Zero FIR:

• CrPC: The notion of Zero FIR was existent but inconsistently applied, limiting its usefulness.
• BNSS: Allows any police station to file a Zero FIR, regardless of jurisdiction, which may then be transferred to the proper jurisdiction.
• Significance: Provides a more victim-friendly method of reporting crimes quickly.

Right to Silence:

• CrPC: The right to silence was not formally recognized, although being inferred by case law.
• BNSS: The right to silence is explicitly recognized as a basic right, and it is expressly safeguarded throughout investigations and interrogations.
• Significance: Strengthens the constitutional privilege against self-incrimination.

Custodial Death Accountability:

• CrPC: There were few mechanisms for investigating custodial deaths, and monitoring was frequently absent.
• BNSS: Introduces tougher measures for investigating custodial fatalities, guaranteeing accountability, and increasing punishments for custodial violence or deaths caused by police wrongdoing.
• Significance: Improves openness and lowers the danger of custodial wrongdoing.

Reduction of Procedural Delays:

• CrPC: There are no safeguards in place to mitigate judicial procedural delays, which result in extended trials.
• BNSS: Emphasizes procedural efficiency to expedite cases and decrease delays in the criminal justice system.
• Significance: Increases efficiency in the judicial delivery system.

Minor Changes in BNSS

Arrest Without Warrant for Certain Offenses:

• CrPC: Allowed arrests without a warrant for both cognizable and non-cognizable offenses in many cases.
• BNSS: Restricts the power of arrest without a warrant for non-cognizable offenses, making arrests more regulated and requiring stricter oversight.
• Significance: This brings balance and protects individuals from arbitrary arrests​

Interrogation Procedures:

• CrPC: Basic guidelines for questioning and interrogation.
• BNSS: Refines interrogation procedures by encouraging the use of video recording and modern techniques, aiming to reduce coercive interrogations.
• Significance: This provides greater safeguards for the accused and prevents custodial torture​.

Power of Executive Magistrates:

• CrPC: Executive magistrates had wide powers, including handling bail applications and criminal complaints.
• BNSS: Limits the powers of executive magistrates in criminal cases and shifts many responsibilities to judicial magistrates.
• Significance: Strengthens the separation of powers and ensures that judicial functions are handled by judges​.

Filing of Complaints by Victims:

• CrPC: Relied heavily on the police for filing complaints.
• BNSS: Victims or affected parties now have an enhanced right to directly file complaints with judicial magistrates in certain cases.
• Significance: Empowers victims and reduces dependency on law enforcement for initiating criminal proceedings​.

Process Serving:

• CrPC: Process serving was manual and slow, causing delays in notifying accused persons.
• BNSS: Introduces electronic service of summons and notices, speeding up the process of notifying accused persons of legal proceedings.
• Significance: This update makes the justice system more efficient and reduces delays​.

Provisions for Juveniles and First-Time Offenders:

• CrPC: Basic protections for juveniles, but no clear distinction for first-time offenders.
• BNSS: Introduces special considerations for first-time offenders and juveniles, encouraging rehabilitation and community service instead of punitive measures.
• Significance: This reflects a more progressive approach towards crime prevention and rehabilitation​.

Gender Sensitivity & Inclusivity:

• CrPC: There are just a few explicit requirements for gender sensitive processes.
• BNSS: Promotes more gender-sensitive processes, especially during victim interviews and investigations.
• Significance: Increases procedural inclusiveness and understanding of gender relations.

Detention Limits:

• CrPC: Allows for up to 24 hours of initial custody, which can be extended to 15 days by a magistrate.
• BNSS: Maintains the 24-hour initial detention restriction but requires specific paperwork and circumstances for subsequent extension to guarantee human rights compliance.
• Significance: Small changes might have an influence on rights protection.

Other Notable Changes

1. Plea Bargaining:

• CrPC: Introduced in the CrPC but limited in scope.
• BNSS: Expands the use of plea bargaining, particularly for minor offenses, allowing quicker resolution of cases and reducing court backlog​.

2. Appeals and Revisions:

• CrPC: Basic guidelines on appeals and revisions.
• BNSS: Streamlines the process of appeals by setting time limits for filing appeals and revisions.
• Significance: This reform seeks to speed up the appellate process and reduce delays​.

3. Inclusion of Victim in Plea Deals:

• CrPC: Did not formally include the victim in plea deals.
• BNSS: Ensures that victims are consulted during plea bargaining negotiations, giving them a say in the outcome.
• Significance: This ensures a more balanced approach between the rights of the accused and the victim​.

Overview of BNSS

The BNSS has identified severe disadvantages, as well as the necessary modifications. While the BSA seeks to clarify evidentiary requirements, there is misunderstanding and inconsistency in certain areas, which may lead to problems with the law’s application. For example, there is a need for more clarity in legislation governing the admissibility of hearsay evidence and expert witnesses. The BSA gives experts substantial ability to deliver opinions in court, raising worries about the possible abuse of expert testimony and the presenting of biased or untrustworthy findings.

According to Section 173(1) of the BNSS, each electronically filed FIR must be formally documented by the officer within three days of the individual submitting it and signing it. Nonetheless, this section does not specify what action a police officer should take if the informant fails to sign the report within the specified date.
According to Section 4(f) of the BNSS, the Court has the jurisdiction to impose community service as a form of punishment for offenders, as stated in Section 23 of the BNSS. Nonetheless, there are no formal rules or definitions for community service.

Provisions in the BSA address electronic evidence, which can be difficult to execute in reality. Nonetheless, there are regulations that address difficulties such as authentication, preservation, and admissibility of electronic evidence.

Bhartiya Sakshya Adhiniyam (BSA), 2023 vs Indian Evidence Act (IEA), 1872.

The BSA seeks to replace the Indian Evidence Act of 1872 and it marks a significant shift in Indias evidentiary law. This act deals with the rules and standards for presenting evidence in a court of law. This new legislation is intended to meet the changing demands of the court system by incorporating current technological breakthroughs and reflecting a more inclusive approach. Below, we explore the key changes introduced by the BSA, comparing them with the corresponding provisions of the IEA.

The Issues of IEA

The Imperial Legislative Council of India enacted the IEA in 1872, under the British Raj, and it is now more than 150 years old. Despite several revisions to the IEA throughout the years, it had outlived its usefulness because it was adopted when technology was unknown, and rather than amending the legislation for this new era, it was necessary to replace it completely.  This strategy should speed up trials and reduce the time spent on admission/denial of evidence. Some of the limitations of IEA are:

• Outdated Provisions: The Act was enacted before technical breakthroughs like as computers, digital communications, and contemporary forensics, making it impossible to handle the rising importance of electronic evidence and digital records in today’s judicial issues.
• Complex and Rigid Language: The language used in the Act was complex, and some of the provisions lacked clarity, which often led to difficulties in interpretation by legal professionals and courts.
• Victim-Centric Justice: The IEA did not account for the changing societal perceptions of justice, particularly in cases involving women, children, and marginalized groups. This created challenges in securing justice for victims of crimes such as sexual offenses and domestic violence.
• Burden of Proof: The Act placed a significant burden of proof on the prosecution and sometimes failed to account for the evolving legal doctrines such as presumption of guilt in certain cases, like anti-corruption and financial crimes.

Given these limitations, there was a growing need for new evidence rule that reflected India’s contemporary circumstances. The BSA, 2023, seeks to overcome these shortcomings and provide a modernized evidence legislation that fits India’s contemporary legal requirements.

Objectives of the BSA

The BSA aims to bring about a much-needed transformation in IEA, with the following key objectives:

• Updating the Law to Include Technological Advancements: One of the central goals of the BSA is to integrate provisions that address the role of electronic and digital evidence in court proceedings. With the increasing role of the internet, social media, digital forensics, and artificial intelligence in both civil and criminal cases, the law will provide specific guidelines on the collection, admissibility, and evaluation of digital evidence.
• Enhancing Victim-Centric Justice: The new legislation aims to protect the rights of victims, particularly in cases involving sexual offenses, gender-based violence, and domestic abuse. It ensures that victims are given a more central role in the judicial process and that the legal system provides them with the essential protections.
• Simplifying the Language and Process: The fundamental purpose of the BSA is to make legal language more comprehensible for both legal experts and the general people, allowing them to comprehend the laws. This is critical for increasing the accessibility of the legislation and avoiding delays caused by interpretation issues.
• Balancing Fairness with Public Safety: While protecting the accused’s rights remains a major concern, the Act seeks to strike a compromise between these goals. The Act aims to expedite and ensure fair justice by tightening evidence collection standards and prioritizing credible evidence.
• Tackling Delays in Trials: The guidelines specified in the BSA are intended to shorten trial delays, particularly in situations involving critical evidence like as forensic reports or expert testimony. Prioritizing efficiency is projected to result in speedier case settlement and a reduction in the Indian court backlog.

The significant changes are as follows: –

1. Definition of Experts

Section 45 of the IEA recognized expert views in just a few categories, including handwriting, science, art, foreign law, and fingerprints. The importance of modern sciences and their profound integration into the legal system has grown over time. Section 39 of the BSA broadens this reach, allowing courts to accept expert views in any sector that requires expert analysis. This amendment recognizes the increasing value of expert evidence in a variety of domains as modern science advances.

2. Removal of Archaic and Use of Inclusive Language

The BSA wants to replace outdated legal terminology in the IEA with more current, acceptable, and inclusive language. For example, Section 124 of the BSA overrides Section 118 of the IEA and deals with a witness’s competency. When discussing the likelihood for persons with disturbed minds to testify, the IEA section referred to them as “lunatics.” The BSA has replaced this term with “a person of unsound mind.”

According to several perspectives, the usage of terms such as “lunatic” or “idiot” has a negative influence on how society regards people with mental diseases, producing a sense of polarization among them in a functional society. As a result, removing such wording from law and court processes is a positive step toward increasing the inclusion and acceptance of people with mental disorders in society.

3. Role of Technology and Electronic Evidence

The integration of technology into the country’s important industries and institutions, including court administration and other judicial offices, represents a significant and unavoidable development. Virtual hearings are currently available from various courts and have been seamlessly incorporated into their normal operations. In light of this shift, the BSA has broadened the definition of “document” in Section 2(d) to include “electronic and digital records.”

Furthermore, the definition of evidence in Section 2(e) of the BSA has been amended to include “statements provided electronically,” broadening the range of admissible evidence to account for the ubiquity of digital communication exchanges. As a result of these revisions, the BSA now uses terminology like “digital” to refer to electronic documents that fall within the jurisdiction of other provisions.

To increase the acceptance of electronic evidence, the BSA included Section 61, which states that electronic evidence cannot be declared inadmissible only because of its electronic format. Section 61 of the BSA states that no electronic or digital record shall be denied entrance provided it fits the conditions outlined in Section 63, which include:

• The data was typically produced by a computer or communication device that was frequently utilized for generating, storing, or manipulating information.
• The electronic record contained information that was inputted into the device as part of its regular operations.
• The device was functioning when the data was created.

In specific cases, Section 63 requires experts to certify electronic evidence. The BSA adds a layer of accountability to the admission of electronic evidence (by audio or video) by an expert certification given under sub-section 4 of Section 63.

4. Joint Trial

The wording of Section 30 of the IEA is preserved in Section 24 of the BSA. This section addresses confessions that not only affect the person making them but also others who are being prosecuted for the same actions. Previously, there was uncertainty regarding joint trials in cases where one of the accused was not present. However, Section 24 clarifies that a trial involving more than one person, even in the absence of an accused who has either fled or failed to comply with a proclamation issued under Section 84 of the BNSS, is considered a joint trial. This essentially allows for a person to be tried in absentia under Sections 48, 107, and 356 of the BNSS.

5. Judicial Notice of International Treaties

BSA Section 52 establishes a new need for judicial notice of foreign treaties, accords, and judgments taken by India in global forums. This amendment reflects the increased importance of international law in domestic proceedings, as opposed to IEA 57, which required judicial notice of facts without explicitly citing international treaties.

6. Other Relevant Changes

The BSA broadens the scope of estoppel as defined in section 122 to include any period following the lease, preventing renters from contesting the landlord’s ownership even after the rental ends. In contrast, the IEA traditionally limited the use of estoppel, particularly in circumstances where a tenant contested a landlord’s title, to the period of the lease.

Furthermore, the IEA traditionally limited the range of acceptable secondary evidence, frequently barring oral and written admissions, as well as expert document analysis. However, BSA Section 58 expands the scope of admissible evidence to include various formats, providing for a more diverse variety of evidentiary submissions in court.

The proviso to Section 165 prohibits courts from demanding the production of any communication between the Ministers and the President of India. Section 1 conspicuously omits the ‘extent’ or territory to which the BSA extends. ‘Coercion’ is included in the list of acts under Section 22 that make an accused person’s confession irrelevant in a criminal proceeding.

Major Changes in BSA

Inclusion of Electronic Evidence:

• IEA: Limited provisions for electronic evidence; Section 65B covered some aspects, but technology had advanced significantly since then.
• BSA: Expands the scope of electronic records and digital evidence to include things like WhatsApp messages, emails, video recordings, and social media posts as admissible evidence.
• Significance: A major reform addressing the digital age, ensuring that electronic data and records are recognized as valid and reliable evidence​.

Admissibility of Secondary Electronic Evidence:

• IEA: Stringent conditions on the admissibility of secondary evidence of electronic records, requiring certification under Section 65B.
• BSA: Relaxes some of these conditions, making it easier to admit secondary electronic evidence in cases where obtaining certification is difficult or impractical.
• Significance: This change increases the flexibility of courts to admit relevant digital evidence in criminal and civil cases​.

Witness Testimony via Video Conference:

• IEA: Witnesses had to be physically present in court for cross-examination.
• BSA: Allows witnesses to provide testimony through video conferencing, especially in cases where witnesses cannot be physically present due to safety, health, or distance.
• Significance: This reform facilitates faster trials and protects vulnerable witnesses from intimidation​.

Presumption of Guilt in Cybercrimes:

• IEA: General presumption of innocence until proven guilty applied to all types of crimes.
• BSA: Introduces presumptions of guilt in specific cases of cybercrimes, where evidence like the presence of digital traces, fraudulent emails, or suspicious online activity is strong.
• Significance: This addresses the difficulty in proving cybercrimes, placing the burden on the accused to prove their innocence in such cases​.

Hearsay Evidence in Special Circumstances:

• IEA: Generally barred the admission of hearsay evidence, with limited exceptions.
• BSA: Expands the exceptions for admitting hearsay evidence, particularly in cases where the original source is deceased or unable to testify due to valid reasons (e.g., witness tampering).
• Significance: Allows flexibility in cases where key evidence might otherwise be inadmissible​.

Witness Protection:

• IEA: There was no direct provision for protecting witnesses, making them exposed to threats, intimidation, or violence, particularly in sensitive instances.
• BSA: The new statute provides extensive witness protection provisions such as anonymity, relocation, and other security safeguards. This allows witnesses to testify without fear of reprisal, which strengthens the judicial system.
• Significance: These procedures improve the integrity of court processes by making witnesses feel comfortable enough to provide accurate evidence.

Expert Testimony:

• IEA: There were few restrictions governing the role and admissibility of expert testimony.
• BSA: The statute now sets clearer rules for expert qualification and testimony admission. It underlines the need of specialists using scientific procedures and remaining impartial in their conclusions.
• Significance: Given the increasing complexity of cases, particularly those involving forensic science, medical evidence, or technology, these recommendations will assist courts in making informed decisions based on expert advice.

Burden of Proof:

• IEA: The presumption of innocence and the shifting of the burden of proof existed, but they were not as precise or extensive as modern legal systems need.
• BSA: The new statute is more precise about the burden of proof in both criminal and civil situations. It describes how the burden of proof may shift throughout judicial procedures and establishes the standards necessary to prove various sorts of cases.
• Significance: This clarifies the duties and expectations in trials, ensuring that legal norms are enforced uniformly.

Oral vs. Documentary Evidence:

• IEA: Although documentary evidence was preferred, the law provided for greater flexibility in the acceptance of oral evidence in the absence of records.
• BSA: The bias for documented evidence has been enhanced, with more specific rules governing when oral testimony may or may not be included. There are other criteria for reading written records, which ensure the integrity of documented evidence.
• Significance: This guarantees that credible, written documents are favoured above possibly untrustworthy oral assertions.

Improper Admission and Rejection of Evidence:

• IEA: The appellate courts have few standards for reviewing material that was improperly admitted or rejected.
• BSA: The new statute establishes more precise standards for appellate courts to consider whether evidence was erroneously allowed or dismissed, and whether such errors influenced the outcome of the case.
• Significance: This offers a stronger foundation for ensuring that trials are fair and that appellate courts may correct errors in evidence processing.

Minor Changes in BSA

Definition of Documents:

• IEA: Narrowly defined documents as written or printed materials.
• BSA: Broadens the definition of documents to include digital formats such as emails, PDFs, audio recordings, and video clips.
• Significance: Reflects modern-day communication methods and data storage formats​.

Changes in the Burden of Proof:

• IEA: Traditional rules for burden of proof, mostly resting on the prosecution.
• BSA: Modifies rules on the burden of proof in cases of sexual harassment, domestic violence, and cybercrime, where certain presumptions may shift the burden to the accused.
• Significance: Helps to protect victims by placing a greater responsibility on the accused to prove their innocence in specific contexts​.

Treatment of Forensic Evidence:

• IEA: Relied on forensic evidence but had no specialized provisions for its admission.
• BSA: Codifies the importance of forensic science evidence, including DNA analysis, fingerprints, and ballistics reports, making them a key part of admissible evidence.
• Significance: Enhances the role of scientific methods in modern trials​.

Protection of Vulnerable Witnesses:

• IEA: Did not have specific provisions to protect vulnerable witnesses (children, sexual assault survivors, etc.).
• BSA: Includes special provisions for the protection of vulnerable witnesses, allowing them to testify behind screens or through video conferencing to avoid intimidation.
• Significance: This improves the safety and comfort of vulnerable witnesses, ensuring they can provide testimony without fear​.

Revised Definitions and Terminology:

• IEA: Contained archaic language and definitions that were no longer relevant in modern times.
• BSA: Updates terminology and definitions to be clearer and more aligned with modern legal standards. For example, terms like “electronic evidence” and “digital records” are now properly defined.
• Significance: These minor changes make the law more accessible and relevant to contemporary legal practices.

Accomplice Evidence:

• IEA: Accomplice evidence was allowed under certain situations, although it was typically regarded with caution.
• BSA: The new statute improves these rules by stating when accomplice testimony is lawful and admissible.
• Significance: This offers clearer procedures for dealing with accomplice testimony, which is sometimes essential in criminal prosecutions.

Other Notable Changes

1. Confession via Electronic Medium:

• IEA: Confessions had to be made physically in court or before an authorized officer.
• BSA: Allows for confessions and statements made via electronic means (e.g., through video conferencing or audio recordings) to be admissible in court under regulated conditions.
• Significance: This acknowledges the growing use of remote communication technologies in legal processes​.

2. Documentary Evidence:

• IEA: Limited focus on documentary evidence beyond written contracts and agreements.
• BSA: Expands the scope of documentary evidence to include documents produced by digital devices, cloud storage, or digital scans, ensuring that these modern forms of records are recognized as valid evidence.
• Significance: Ensures that modern-day documentation is respected as legal proof in court​.

Overview of BSA

Electronic records were subject to tampering, and no safeguards were in place to prevent this. Furthermore, electronic evidence was not secured during searches and seizures, and a trained forensic expert was not required to be present during these searches. However, the BSA has corrected these flaws in their guidelines. The BSA considers electronic records to be main evidence until challenged, which was not the case in the IEA. The BSA also meets the most of the IEA’s standards, such as burden of proof, confessions, and factual significance.

Conclusion

India’s criminal code has been considerably modified with the addition of three new criminal laws and incorporated significant changes to crucial definitions. These statutes seek to reconcile the legal system with modern reality, reduce colonial influence by technological means, encourage inclusive language, and broaden the meanings and implementations of various laws. Although several sections have been kept, the real significance of these amendments will become clear when courts interpret and implement the new statute in future instances.

Modern laws address current challenges, protect victims’ rights, and increase the efficacy and efficiency of the criminal justice system. Despite the need to solve a variety of issues, these laws have the potential to significantly improve Indian society.

BIBLIOGRAPHY

• https://prsindia.org/billtrack/the-bharatiya-nyaya-second-sanhita-2023.
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• https://www.indiacode.nic.in/handle/123456789/20099?view_type=browse.
• https://prsindia.org/billtrack/the-bharatiya-sakshya-bill-2023.
• https://www.indiacode.nic.in/handle/123456789/20063?view_type=search&col=123456789/1362.
• https://www.foxmandal.in/changes-brought-forth-by-the-bharatiya-nyaya-sanhita-2023/.
• https://www.taxmann.com/post/blog/comparative-study-bharatiya-nyaya-sanhita-bns-indian-penal-code-ipc.
• https://www.lexology.com/library/detail.aspx?g=8b6e523a-8ba1-4575-9408-c58a70cd31cc.
• https://www.barandbench.com/columns/comparative-analysis-of-code-of-criminal-procedure-1973-and-bharatiya-nagarik-suraksha-sanhita-2023.
• https://www.lexology.com/library/detail.aspx?g=8ca4eb70-8e3f-4da8-a3a9-61b28e6e2aaa.
• https://www.vaishlaw.com/bharatiya-sakshya-adhinyam-2023-bsa-vs-indian-evidence-act-of-1872-iea/.
• https://www.theindiaforum.in/law/bharatiya-sakshya-bill-2023-new-and-unimproved-evidence-act.
• https://bprd.nic.in/uploads/pdf/1715852525_852f82459fd399a38f9f.pdf.
• https://www.barandbench.com/columns/comparative-analysis-of-code-of-criminal-procedure-1973-and-bharatiya-nagarik-suraksha-sanhita-2023.

[1] BNS, Sections 152 and 197 (1)(d).