‘Cannot replace 3 major criminal Acts simply by re-adjusting words, sections’

CHENNAI: “The old order changeth yielding place to new,” said Lory Tennyson. So it came as no surprise when the Government of India moved 3 Bills to replace the 3 Criminal Major Acts, which had their roots in the 19th Century.

The Acts – Indian Penal Code, Criminal Procedure Code and Indian Evidence Act – have gone through many amendments over the years but the move to scrap them completely and substitute them with brand new Acts under the names – Bharatiya Nyaya Sanhita (BNS), Bharatiya Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) – gave rise to a vision of a paradigm shift. Or so, many believed.

A careful scrutiny of the old Acts and the new Bills, however, shows this expectation has been belied. By and large, the new Bills are not very different from the old Acts. 33 sections in the old Acts have been deleted. New material is found in 27 clauses in the new Bills. 285 provisions show changes, but not many of them significant, most of the changes being only nominal or technical.

For instance, the word ‘lunatic’ in the Evidence Act has been replaced, rightly so, with the phrase ‘a person with mental illness’ and this counts among the 285 amendments. The change of ‘must’ in a section in the Evidence Act to ‘shall’ is another amendment, though it is not clear what prompted this change. 760 provisions are identical to those in the old Acts.

There is nothing significantly new in more than 90% of the provisions of the Bills.

Lawyers, judicial officers, police officers and law students will have to learn the new Sections. Section 302 IPC referring to murder will become 101(1) in the new Act. On the other hand, 302 in BNS will refer to snatching, a newly defined offence.

Even laymen with scant acquaintance with IPC knew that the term 420 drawn from that Act refers to a cheat and surely they are not going to switch over to 316(2) which is the corresponding section in BNS.

Practitioners of criminal law can ill-afford to unlearn the old Acts and sections either, as they will apply to cases registered earlier and still pending. There are 1,059 sections in the old Act and 1,160 sections in the new avatar. There will be 2,219 sections to grapple with.

Is all this worth the effort considering the fact that changes are not so radical or wholesale? This question is particularly relevant when it is seen that drafting of the clauses leaves much to be desired. How do the new Acts measure up to the old ones?

Once Henry Kissinger, former US Secretary of State, wrote a speech for President Richard Nixon. Some staff in the White House made a few changes to the draft. When he saw this, Kissinger was livid and said, “This is like buying a painting by Picasso and then hiring four house painters to improve upon it.”

No disrespect meant for house painters, and definitely none to the eminent persons chosen to undertake this momentous task of revising the Codes. Still, we cannot ignore the discrepancies, inaccuracies and the not-so-felicitous expressions that have crept into the Bills.

To give just one glaring example: Provision 23 of the BNS is the same as Sec 85 of the IPC – except that the word ‘provided’ has been replaced with ‘unless’. To put it simply, the section means that nothing done by a person while drunk is an offence, provided liquor had been forced upon him.

Changing the word ‘provided’ to ‘unless’ gives a perverse meaning. The effect can be seen if these two sentences are compared: ‘Nothing is a crime provided the intent was good’ vs ‘Nothing is a crime unless the intent was good’.

In 1631, a Bible published in England came to be known as the Wicked Bible or the Sinner’s Bible as the word ‘not’ had been inadvertently omitted in the seventh commandment. That can be excused as a typographical error – a blunder by the compositor. But the anomalies found in BNS are a disturbing sign of a lack of accuracy and meticulousness. After all, a dairy company in the US had to shell out $5 million due to a missing comma, known as the Oxford Comma, in a piece of legislation.

Union Home Minister, while introducing the BNS, acknowledged that IPC was the work of the First Indian Law Commission under the Chairmanship of Macaulay. Would it not have been in the fitness of things if drafting the new Acts had been entrusted to the Law Commission, which is traditionally headed by a retired Supreme Court Judge or Chief Justice of a High Court? But the task was entrusted to the Committee for Criminal Reforms constituted by the MHA in May 2020, with three academicians / scholars, a senior advocate and, on the judicial side, a retired district and sessions judge of Delhi.

While reviewing a book, someone said, “This is not a book to be tossed aside lightly, it should be thrown with great force.”

We’re not, for a moment, suggesting this should be applied to the proposed Acts. After all, legal scholars of excellence with sharp legal acumen have spent 3 years over these reforms.

It is reported that the Committee received suggestions from the Supreme Court, 16 High Courts, 5 judicial academies and 22 law universities apart from a large number of MPs and MLAs. All this work cannot go waste.

There are many positive and progressive features, no doubt. Admissibility of electronic or digital records as evidence, provision for audio-video recording during search and seizure operations, trials in absentia of proclaimed offenders are a few samples.

All these changes can be incorporated in the old Acts rather than having new enactments and this work can be entrusted to the Law Commission.

It will be sad if the old order comes to be replaced by a new order – mainly in the re-ordering of the Sections. While talking about the old order making way for the new, Lord Tennyson said in the same breath, “More things are wrought by prayer than this world dreams of.”

We hope the Standing Committee of the Home Affairs department will heed our prayers.