The Indian Criminal Justice system has witnessed quite a journey starting from the Arthashastra to the Bharatiya Nyaya Sanhita, the criminal system has traversed through many ups and downs.
Historically, the Indian criminal justice system was governed by ‘dharma’ or what we call ‘righteousness’. The rules of conduct in society were decided based on whether it was righteous or not. The rules of conduct were obtained from the Vedas and smritis that were introduced in ancient India. These orally passed-on laws highlighted what was right and what was wrong, that is, what was dharma and what was adharma. The criminal justice system was largely intertwined with belief and ethics in ancient India, where orally passed on traditions served as the ‘constitution’ of ancient India. Later these traditions were formed into the Vedas and Puranas. The punishment for different crimes was also enlisted in these scriptures and rulers of ancient India followed the advice of the chief justice, who interpreted these scriptures effectively. The final say and punishment were delivered by the King. The concept of the rule of law, which states that law is supreme and even the king is subjected to law, was first introduced in the Upanishads. The king did not have the sole authority to decide the punishments and this authority was derived from the scriptures in place. The main scriptures that were utilised in ancient India were the Arthashastra by Chanakya, Manusmriti by Manu and Yagnyavalkya smriti by Yagnyavalkya. The punishments in ancient India were mainly divided into four categories:
– Capital punishment – the offences that were grievous in nature were awarded with punishments such as the death penalty.
– Corporeal punishment – this type of punishment resulted in physical injury to the offender and it varied based on the crime committed.
– Social Punishment – this type of punishment often involves restrictions on business transactions and social relationships.
– Financial Punishment – this type of punishment deals with financial compensation for the crime committed.
In ancient India, there was a clear distinction between civil and criminal wrongs and every offender was given a chance to plead their case to the king, who was the final authority. The system of what we call appeal in the present was followed in India from ancient times.
During the medieval era, India was subjected to many invasions starting with the Aryans to the Mughals. This heavily impacted and altered the Indian criminal justice system. For instance, during the Mughal rule, the criminal justice system was heavily influenced by Islamic laws such as the Sharia law. The punishments were more extreme in nature with offenders not getting the opportunity to justify or seek justice. Parallelly, there were a lot of new offences also introduced which were in accordance with the Sharia Law. Punishments like Diya, which refers to blood money, were introduced wherein the offender had to compensate the victim with blood. Polygamy was not considered an offence or adharma during the Mughal rule. During the ancient as well as the medieval era, the criminal justice system was not codified. It developed and changed with the change in rule and change in society.
The colonial period was one of the most important periods in the journey of the Indian criminal justice system as it was during the colonial rule that the criminal justice system was codified for the first time with the help of the Indian Penal Code which was introduced in 1860. The British wanted to introduce a uniform criminal system in India as until 1860 the criminal justice system of the country was not codified and followed various scriptures and religious texts- thereby making it difficult to govern. The Indian Penal Code comprises all offences along with the punishments for these offences listed across 23 chapters. Various other acts were also introduced such as the Criminal Procedure Code, of 1861, The Indian Evidence Act, of 1872 and the Indian Police Act, of 1861. All these acts aimed to centralise the criminal justice system in India and laid down procedures for dealing with criminal wrongs and offences. The Indian Penal Code along with the Criminal Procedure Code and the Indian Evidence Act were followed after the independence of India. There have been various amendments made to these acts in the past few years and various committees have also suggested reforms and changes. One such example is the Justice Malimath Committee which submitted a report with 158 recommendations. The committee also held that the current justice system weighed more in the favour of the accused and there was less focus on giving justice to the victims of the crime. Various cases such as the Nirbhaya Rape case amongst others led to more reforms and the need for changes in the IPC.
Until 2023, India followed the same laws put in place during the colonial era. Various lawyers and judges pointed out the same and called for reforms. The Indian Criminal Justice system was still following the colonial roots and was largely expressive of the ideas and goals set forth by the British. Thus, in 2023, the Bharatiya Nyaya Sanhita was introduced replacing the Indian Penal Code. The Bharatiya Suraksha Adhinam replaced the Indian Evidence Act and the Bharatiya Nyaya Suraksha Sanhita replaced the Criminal Procedure Code. This act was undertaken to make the criminal justice system more Indianised to reflect the ideologies of India and to provide justice for Indian society. This step taken by the government was indeed long overdue and commendable. It was a reform that India truly needed as being an independent country, the laws in place must also be expressive of India as against the British who have long left our lands.
Now comes the question- when the major change from IPC to BNS has already been implemented, what more change does the system require?
The Bharatiya Nyaya Sanhita has definitely incorporated reform. The BNS is more concise than the IPC with more array of crimes being covered and many sections that were discriminatory and no longer required were repelled. However, as much as BNS has been useful and has brought about more India-centric laws, there are many issues that the BNS has also not addressed. To start with, the BNS is yet majorly a cut copy of the IPC with few changes in different sections. There is no major difference that exists between the IPC and BNS. Thus, even though the name ‘Bharatiya Nyaya Sanhita’ reflects indianess, the same cannot be said for the contents as the laws still reflect those of colonial times. Furthermore, the long-contested issue of whether laws must be gender-biased or not has also not been addressed in the BNS. The BNS further has not introduced any legal sections to address crimes caused as a result of advancing technology. New technology has not been incorporated into the BNS and has been overlooked. Adding on, some offences are outdated and very punitive in the present societal structure, such as the sedition laws, such should have been changed and amended in the BNS. IPC was said to be punishment-centric and often did not address the needs of the victims for their relief. The BNS has also not introduced any such laws for victim relief and yet fairly remains punishment-centric. The problem of delayed justice has also not been addressed and is a pertinent aspect that needs to be looked into given the delays in the present justice system. By including these changes the Bharatiya Nyaya Sanhita would be more comprehensive and would strengthen the countries criminal justice system.
The primary goal of the BNS was to include the various practices that have been followed in our country from before the colonial period and to remove the traces of colonial law. However, this goal remains unfulfilled, coming to my argument regarding why the criminal justice system needs reform. In ancient India, though the criminal system was not codified, it mainly depended on the scriptures such as Arthashastra and Manusmriti. The practices followed in today’s system such as appeals, trials, witnesses, etc have been followed in India since ancient times. The present system needs to be reformed and should have more practices from ancient and medieval India incorporated, truly bringing in the essence of an Indianised Criminal Justice System. These reforms will lead to a more efficient justice system with a more streamlined process of investigation and providing justice. India is a diverse country that has journeyed a lot over these past few years making the country as rich in culture and heritage as it is now. Hence, it is also pertinent to devise a criminal justice system that reflects the principles and values that make India what it truly is.