India’s Biggest Criminal Justice Overhaul

On December 20, 2023 Indian Lower House Lok Sabha passed three criminal laws, the Bharatiya Nyaya (Second) Sanhita, the Bharatiya Nagarik Suraksha (Second) Sanhita and the Bharatiya Sakshya (Second) Bill 2023. The first, second and third will replace the Indian Penal Code, 1860, the Criminal Procedure Code of 1973 and the Indian Evidence Act of 1872 respectively.

India’s overhauling of Criminal Justice system is to modernize the criminal justice system in light of technological advancements, and reflective of changing societal morals. The table (Attached as Annexure A) lists the major changes which may have Lawfare Opportunities.

These laws were quickly passed through both houses of parliament over two days with minimal debate, as nearly 97 opposition MPs remained suspended amid protest over Parliament security breach. The 03 bills provide following newly added provisions: – There would be a provision of death penalty for mob lynching. If one accepts their crime within 30 days of committing it, then the punishment would be less. The deadline for filing FIR had been fixed. After submitting the investigation report to the district magistrate, it will have to be presented before the court within 24 hours.

There is a provision to send the medical report directly to the police station or court within 07 days. Charge sheet could no longer be kept pending after 180 days. Now the accused will get 07 days to file a plea for acquittal. A judge has to hold the hearing in those seven days and in a maximum time of 120 days; the case would come to trial. It is compulsory to produce all documents within 30 days during trials. If the accused fails to appear before court within 90 days, the trial will proceed in his absence. A lawyer appointed by the govt will get the person bail or put him on death row; there will be a quick procedure to bring the accused to India from other countries. The new law defines “organised crime” including cybercrimes, economic crimes, land grabbing, human trafficking etc.

Law	Newly Added Provisions
Bharatiya Nyaya (Second) Sanhita Bill, 2023	20 new offences added and 19 deletedJail term up in 33 offences; fine up in 83Attempt to commit suicide deletedExpanded the definition of terrorismChild defined; transgender in definition of ‘gender’Organized crime, terror act, hit-&-run, lynching offencesElectronic/digital records part of definition of document
Bharatiya Nagarik Suraksha (Second) Sanhita Bill, 2023	Forfeiture, attachment of proceeds of crimeIn-absentia trial up to delivery of judgmentZero FIR throughout countryElectronic lodging of FIRForensic aid in investigationProbe of serious offence by DSP-level police
Bharatiya Sakshya (Second) Bill, 2023	Two new sections, six new sub-sectionsStatements received electronically part of definition of ‘evidence’Admissibility, validity, enforceability of e/digital record as evidenceConviction based on corroborated testimony of accomplice legalHusband/wife competent witness in criminal cases against spouseReferences to colonial terminology done away with

Note: The detailed version is attached as Annexure B

Annexure A

INDIA’S POTENTIAL LAWFARE MOVES AND OPPORTUNITIES FOR PAKISTAN

Changes in Law	Potential Lawfare Opportunities for Pakistan	Lawfare Theme for Pakistan
By Sec 113 definition of a “terrorist act” has been expanded to include “any act with the intent to threaten or likely to threaten economic security” and “damage or destruction of any property in India or in a foreign country used or intended to be used for the defense of India.”	India is currently undergoing investigations by FATF due to funding terrorist groups and accepting funds from terrorist organizations.	Although the definition of Terrorism under UAPA includes economic security, however, this may represent a Lawfare ‘Opportunity’ to Pakistan. ISPR must engage in discussions, podcasts to highlight this aspect. Articles should also be published so that this point is circulated in the news.
Sedition Law Section 152 of Bharatiya Nagarik Suraksha (Second) Sanhita 2023, retains the offence of sedition but with new terminology and more extensive definition of “Acts endangering sovereignty unity and integrity of India.”	Recently, India has used this law to ban parties in IIOJK. On December 27, 2023 the Indian Govt designated the J&K Muslim League Faction as unlawful under UAPA, 1997. The Home Ministry alleged that the Party is being funded by Pakistan and involved in anti-national activities.  (Attached as Annexure C)Pak may highlight this issue because its contravene ICCPR & UDHR.	Amnesty International and Human Rights Watch have criticized this sedition law calling it against the right of freedom of expression. Manifestation: Pak may use media forums to highlight that India has merely changed the name of the law but the underlining effect is the same “to curb dissenting voice”.ISPR may highlight India’s covert method to retain sedition law.

Annexure B

THE BHARATIYA NAYAYA SANHITA BILL 2023

(FORMER INDIAN PENAL CODE 1860)

The Bharatiya Nayaya Sanhita Bill 2023
Newly Added Clauses	Text of the Provisions	Way Forward for Pakistan
Clause 113 Terrorist Act	Now as per the new law, following shall be terrorist acts:-Any act with intent to or likely to threaten the integrity, sovereignty or economic security of India in our outside the country.By using bombs, dynamite or other explosive substances etc. to cause death of/injury to any person.Disruption of any supplies//services essential to the life of community in India or in any foreign country.Damage/destruction of any property in India or in a foreign country used or intended to be used for the defense of India.Overawes by means of criminal force or causes or attempt to cause death of any public functionary.Detains/kidnaps/abducts any person and threatening to kill or injure such person or does any other act in order to compel the Govt of India, any State Govt or Govt of a foreign country or an international or inter-governmental organization or any other person to do or abstain from doing any act.	The most important change made by the Indian Government which will replace the IPC is the expansion of the definition of terrorism. It included the same definition as provided in the Unlawful Activities (Prevention) Act, 1997 (UAPA) except for addition of certain punishments.Pakistan may also expand the definition of terrorist acts to cater the violence against society at large.Now the Indian Govt will have a double edged weapon to prosecute terrorism under two statutes, a special law UAPA and a general law (BNS).BNS provides unguided powers to the Police to choose the statute under which investigation and prosecution of alleged terrorism will take place. This section may be used for political victimization against dissenting voices.
Clause 103(2) Punishment for Mob Lynching	When a group of 05 or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death/ imprisonment for life, & shall also be liable to fine.	Introducing mob lynching should be applied to everyone regardless of caste and religion.More than 70 individuals who were accused of blasphemy were murdered by mobs since 1990-2023 [(Ref: Foreign Affairs Insights & Reviews (FAIR) Article of February 12, 2023)]
Clause 117(4) Grievous Hurt Inflicted by Group	When a group of 05 or more persons acting in concert, causes grievous hurt to a person on the ground of his race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of such group shall be guilty of the offence of causing grievous hurt, and shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.	In fact a bill titled the Criminal Laws Amendment Bill, 2016 an amendment in Anti-Terrorism Act, 1997 was proposed to penalize mob lynching by inserting Section 11WW which states that: whenever an individual or organized group or a mob by taking the law into own hands inflict punishment on a person accused or suspected of a crime by causing him a hurt or his death, each every individual, a member of such group or a mob is said to commit lynching. And he shall be punished with imprisonment for a term which may extend to 03 years/fine or with both.
The Bharatiya Nayaya Sanhita Bill 2023
Newly Added Clauses	Text of the Provisions	Way Forward for Pakistan
Clause 84 Adultery	Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.	In 2018 the Supreme Court of India had struck down adultery as an offence on grounds that it was discriminatory.While in Pakistan under Section 17 of the Zina Ordinance 1979, the punishment for adultery is stoning to death.
Clause 152 Act endangering sovereignty, unity and integrity of India.	Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine.	Earlier sedition was punishable by life imprisonment or with imprisonment which may extend to 03 years; under Section 124A of the Indian Penal Code and now the Govt has not just changed the name of Sedition Law but also increased the punishment from 03 to 07 years keeping life imprisonment the same.
Clause 70 Gang Rape	Separate provisions have been made to deal with crimes against women and children. In the case of rape of minor girl, life imprisonment and death penalty can be given. A gang rape could lead to 20 years or imprisonment for the rest of life. The age limit for consensual sex with wife has been increased to 18 years.	In Pakistan, Gang Rape is punishable under Section 375A through Criminal Laws (Amendment) Act, 2021 of the PPC with death or for imprisonment for the remainder period of natural life or imprisonment for life and fine.
The Bharatiya Nagrik Suraksha Sanhita Bill 2023
Newly Added Clauses	Staff Comments	Relevant Law in Pakistan
Clause 23 Sentences which Magistrate may Pass	This section provides definition of community service (Magistrate of 1st Class may pass) which means the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.Being mindful of the caste system in India this section does not provide that the community service shall not be gender biased or class prejudiced.	The Probation of Offenders Ordinance, 1960 provides for the release of convicts on probation.The Supreme Court also urges the courts and prosecution departments to release the convict on probation by incorporating unpaid community service as part of the conditions of the order. (Ref: Justice Qazi Faez Isa Judgment 2022)
Other Offences	Lack of judicial oversight, as the BNSS places significant responsibility on law enforcement agencies to decide whether or not to arrest / detain an individual.	These powers may be used to target a particular group within the community, and may be used as lawfare for political gains. It also notable that the Bill does not include any provision for prevention of torture.