Chief Justice of India DY Chandrachud on Saturday said the country was set for a significant overhaul of its criminal justice system with the upcoming implementation of three new criminal laws.
Speaking during the Conference on India’s Progressive Path in the Administration of Criminal Justice System, the CJI said that these laws signified a watershed moment for the society because no law affected the day-to-day conduct of the society like the criminal law.
A criminal law directed the moral arc of a nation and had the ability of depriving people of their cherished liberties, he added.
The CJI was talking about the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam, which will replace the Indian Penal Code, 1860; the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872 respectively.
He said the underlying justification for the substantive provisions was the age-old harm principle which was best summarised in the saying, ‘Your right to swing your arms ends just where the other man’s nose begins.’
As per the CJI, the procedural law which governed crimes from the state of setting the criminal process in motion to the conviction for the commission of the offence ensured that no person was charged and subsequently convicted for offences without following the due process of law.
The traditional harm principle has found resonance with the understanding that crime was immoral.
The father of criminology, Raffaele Garofalo, defined crime as “an immoral and harmful act that is regarded as criminal by public opinion because it is an injury to so much of the moral sense as is possessed by a community – a measure which is indispensable for the adaptation of the individual to society,” he added.
As per the CJI, the ideals underpinning the combination of harm and immorality were premised on the perception that deprivation of liberty lead to repentance and moral salvation.
He said there were two problems with this approach. The first one was that it was not a victim-oriented approach. The impact of the harm on the victim was not considered. Victims of crimes often felt like their agency over their own decisions was lost by the commission of a crime. The laws must aim to give victims a sense of agency and control in the criminal process as well as a sense of justice.
The second problem with the harm and immorality approach was that it advanced a perpetrator perspective to crime which viewed crimes as an individual failing. It did not address systemic causes which pushed the people to commit crimes.
For example, a law addressing gender violence will rightly condemn such violence as immoral and punish it. But it did little to change the sexist and patriarchal framework of the society, which induced the commission of these crimes.
Indian laws need to address these concerns and obviate age-old issues like delays in examination of witnesses, conclusion of trials, overcrowding of prisons and the issue of undertrial prisoners.
The 248th Report of the Standing Committee of the Rajya Sabha on the Bharatiya Sakshya Samhita of November 10, 2023 noted that the Indian criminal justice system has struggled to keep pace with the profound technological changes of the Indian socio- economic milieu that have radically re-imagined the way in which crimes manifest in the society.
The growing scope of technology and new age crime which use the digital landscape to create networks of collaborative units to commit crimes cannot be pinned to an investigative situs. This has presented challenges in investigation of crimes, admission of evidence and prosecution as well as justice delivery, he added.
He noted that American jurist Justice Oliver Wendell Holmes had said in Law in Science – Science in Law that everyone instinctively recognised that in these days, “the justification of a law cannot be found in the fact that it was followed by our fathers. It must be found in some help, which the law brings toward reaching a social end which the governing power of the community has made up its mind that it wants.”
As per the CJI, the newly enacted criminal laws have transitioned India’s legal framework on criminal justice into the new age. Much needed improvements have been introduced to protect victim interests and carry out the investigation and prosecution of offences efficiently.
The BNSS encompasses a holistic approach to deal with crimes in the digital age. It prescribes audio visual recording of search and seizures5 and the presence of a forensic expert at the crime scene for offences punishable with more than seven years imprisonment.
The audio-visual recording of search and seizures is an important tool for the prosecution as well as for protecting the civil liberties of citizens. The judicial scrutiny would safeguard the rights of citizens against procedural impropriety during search and seizures.
Similarly, the presence of a forensic expert at the scene of the crime will enhance the efficiency of the investigating team and allow for crimes to be decoded with the aid of the latest advancements in forensic technology.
While the country makes strides in this direction, the citizens must now confront the challenges of fulfilling the aims of the new criminal legislations. Detailed rules need to be formulated on the type of devices to be used for recording, incorporating the principles of natural justice and lay down the consequences of not carrying out such recording.
He said that since he took over as the Chief Justice of India, and even before that when he was the chairperson of the e-Committee of the Supreme Court, he has advocated for creating a natively digital court infrastructure.
The judiciary has strategically and persistently worked towards creating technologically equipped court systems, which can facilitate a citizen centric and efficient mechanism from the filing of a case to its disposal.
It was therefore very heartening to notice that Section 532 of the BNSS allows for all trials, inquiries, and proceedings under the Code to be conducted electronically.