On 11th August 2023, Union Home Minister, Mr. Amit Shah introduced three bills in the Lok Sabha with the aim to overhaul the existing Indian Penal Code, 1860 (“IPC”), Code of Criminal Procedure, 1973 (“CrPC”), and the Indian Evidence Act, 1872 (“Evidence Act”). The notable changes proposed to be made are as follows:

The Bharatiya Nyay Sanhita, 2023 (“IPC”)

• Sedition:  IPC defines sedition as bringing or attempting to bring hatred or contempt, or exciting disaffection towards the government.  It is punishable with imprisonment term between three years and life imprisonment, and/or a fine.  The Bill removes this offence.  It instead penalises the following: (i) exciting or attempting to excite secession, armed rebellion, or subversive activities, (ii) encouraging feelings of separatist activities, or (iii) endangering sovereignty or unity and integrity of India.  These offences may involve exchange of words or signs, electronic communication, or use of financial means.  These will be punishable with imprisonment of up to seven years or life imprisonment, and a fine.
• Terrorism:  The Bill defines terrorism as an act that intends to threaten the unity, integrity, and security of the country, to intimidate the general public or disturb public order.  Terrorist acts include: (i) using firearms, bombs, or hazardous substances (biological or chemical) to cause death, danger to life, or spread a message of fear, (ii) destroying property or disrupting essential services, and (iii) activities included in the treaties listed in the Second Schedule of the Unlawful Activities (Prevention) Act, 1967 such as unlawful seizure of aircraft or taking of hostages.  Punishment for attempting or committing terrorism includes: (i) death or life imprisonment, where the offence has resulted in death of any person, (ii) imprisonment term between five years and life in other cases.  An offender will also be liable to a fine of at least five lakh rupees.
• Organised crime:  The Bill defines organised crime as: (i) a continuing unlawful activity such as kidnapping, extortion, contract killing, land grabbing, financial scams, and cybercrime, (ii) carried out by use of violence, intimidation, or other unlawful means, (iii) to obtain material or financial benefit, and (iv) carried out by individuals acting singly or jointly, as members of or on behalf of a crime syndicate.  Attempting or committing organised crime will be punishable with: (i) death or life imprisonment, where the offence results in death of any person, and (ii) imprisonment term between five years and life, in other cases.  The offender will also be liable to pay a fine.
• Petty organised crime:  The Bill makes attempting or committing petty organised crime punishable with imprisonment between one and seven years, and a fine.   Petty organised crimes are those which cause general feelings of insecurity among citizens and are committed by organised criminal groups/gangs.  These include organised pick pocketing, snatching, and theft.
• Murder by a group of persons on grounds of caste or race:  The Bill specifies separate penalty for murder committed by five or more people on specified grounds.  These include race, caste, sex, place of birth, language, or personal belief.  Each offender will be punishable with imprisonment between seven years and life, or death.  It will also attract a fine.
• Death penalty for gang rape of minor:  IPC allows death penalty for gang rape of women below 12 years of age.  The Bill allows death penalty for gang rape of women below 18 years of age.
• Sexual intercourse by deceitful means:  The Bill penalises the act of sexual intercourse with a woman (not amounting to rape) through deceitful means or a promise of marriage without intending to fulfil it.  It will be punishable with simple or rigorous imprisonment up to 10 years, and a fine.
• Extending applicability of certain offences to boys:  Under the IPC, importing girls under the age of 21 years for illicit intercourse with another person is an offence.  The Bill specifies that importing boys under the age of 18 years for illicit intercourse with another person will also be an offence.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (“CrPC”)

• Undertrials: Under the Code, if an accused has spent under detention half of the maximum period of imprisonment for an offence, during investigation or trial, he must be released on his personal bond.  This does not apply to offences which are punishable by death.   The Bill adds that this provision will also not apply to: (i) offences punishable by life imprisonment, and (ii) persons against whom proceedings are pending in more than one offence.  It further adds that first-time offenders will be released on bail if they have completed detention for one-third of the maximum imprisonment which can be imposed for the offence.  The superintendent of the jail where the accused is detained must make the application seeking the release of such undertrials on bail.
• Trials in electronic mode: The Bill provides that all trials, inquires, and proceedings may be held in electronic mode.  It also provides for the production of electronic communication devices, likely to contain digital evidence, for investigation, inquiry, or trial.   Electronic communication includes communication through devices such as mobiles, computers, or telephone.
• Medical examination of accused: The Code allows conducting a medical examination of the accused in certain cases, including cases of rape.  Such examination is carried out by a registered medical practitioner on the request of at least a sub-inspector level police officer.  The Bill provides that any police officer can request for such an examination.
• Forensic investigation: The Bill mandates forensic investigation for offences punishable with at least seven years of imprisonment.  In such cases, forensic experts will visit crime scenes to collect forensic evidence and record the process on mobile phone or any other electronic device.  If a state does not have forensics facility, it shall utilise such facility in another state.
• Power to prohibit carrying arms: The Code empowers the District Magistrate to prohibit the carrying of arms in any procession, mass drills, or mass training with arms in public places.  This may be done to preserve public peace, public safety, or maintain public order.  Such prohibitions may be in place for up to six months.  However, the provision was not notified under the Code.  The Bill omits this provision.
• Signatures and finger impressions: The Code empowers a Metropolitan/Judicial Magistrate to order any person to provide specimen signatures or handwriting.  Such an order can be given for any investigation or proceeding under the Code.   However, such specimen cannot be collected from a person who has not been arrested under the investigation.  The Bill expands this to include finger impressions and voice samples.  These samples may also be taken from a person who has not been arrested.
• Timelines for procedures: The Bill prescribes timelines for various procedures.  For instance, it requires medical practitioners who examine rape victims to submit their reports to the investigating officer within seven days.  Other specified timelines include: (i) giving judgement within 30 days of completion of arguments (extendable up to 60 days), (ii) informing the victim of progress of investigation within 90 days, and (iii) framing of charges by a sessions court within 60 days from the first hearing on such charges.
• Trial in absence of offender: The Bill provides for conduct of trial and pronouncement of judgement in the absence of a proclaimed offender.  This shall be done when such a person has absconded to evade trial and there is no immediate prospect of arresting him.  Proclaimed offender refers to a person who: (i) is accused of an offence punishable with imprisonment of at least 10 years or death and (ii) fails to appear at a specified time and place as specified by a Court.
• Metropolitan magistrates: The Code empowers the state governments to notify any city or town with a population of more than one million as a metropolitan area.  Such areas have Metropolitan Magistrates.  The Bill omits this provision.

The Bharatiya Saksha Bill, 2023 (“Evidence Act”)

• Admissibility of electronic or digital records as evidence: The Act provides for two kinds of evidence – documentary and oral evidence.  Documentary evidence includes information in electronic records that have been printed or stored in optical or magnetic media produced by a computer.   Such information may have been stored or processed by a combination of computers or different computers.  The Bill provides that electronic or digital records will have the same legal effect as paper records.  It expands electronic records to include information stored in semiconductor memory or any communication devices (smartphones, laptops).   This will also include records on emails, server logs, smartphones, locational evidence and voice mails.  As per the Bill, the information may have been created on, stored in, or processed by one or more computers or communication devices: (i) which may be standalone systems or on a computer network, or (ii) through an intermediary. 
• Oral evidence: Under the Act, oral evidence includes statements made before Courts by witnesses in relation to a fact under inquiry.  The Bill adds any information given electronically to be considered as oral evidence.  
• Secondary evidence: Under the Act, documentary evidence includes primary and secondary evidence.  Primary evidence includes the original document and its parts, such as electronic records and video recordings.  Secondary evidence contains documents that can prove the contents of the original.  Secondary evidence includes certain copies of the original documents and oral accounts of the document’s content.  The Bill expands secondary evidence to include: (i) oral and written admissions, and (ii) the testimony of a person who has examined the document and is skilled in the examination of documents.  Under the Act, secondary evidence may be required under various conditions, such as when the original: (i) is in the possession of the person against whom the document is sought to be proved, or (ii) has been destroyed.  The Bill adds that secondary evidence may be required if the genuineness of the document itself is in question.
• Production of documents: The Act provides for the production of documents.  If a witness is summoned to produce a document and has it in their possession or power, they must bring it to Court regardless of any objection to its production or admissibility.  The Court will determine the validity of such a document.  The Bill adds that no Court will require any privileged communication between the Ministers and the President to be produced before it. 
• Joint trials: A joint trial refers to the trial of more than one person for the same offence.  The Act states that in a joint trial, if a confession made by one of the accused which also affects other accused is proven, it will be treated as a confession against both.  The Bill adds an explanation to this provision.  It states that a trial of multiple persons, where an accused has absconded or has not responded to an arrest warrant, will be treated as a joint trial.

The Bills have been sent to a Parliamentary Committee for scrutiny and may undergo further discussion and changes and will ultimately have to be passed by the Parliament and receive the assent of the President before they become law and take effect.