‘Watershed moment for our society’: CJI DY Chandrachud on Bharatiya Nyaya Sanhita

He pointed out that “the BNSS” which replaces the Code of Criminal Procedure, 1973, “encompasses a holistic approach to deal with crimes in the digital age. It prescribes audio visual recording of search and seizures and the presence of a forensic expert at the crime scene for offences punishable with more than seven years of 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,” he added.

The CJI told the gathering at the conference organised by the Union Ministry of Law and Justice, that “while we make strides in this direction, we 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”.

The CJI who has consistently promoted hearings through the virtual mode, said, “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.”

CJI Chandrachud pointed to the need for protecting privacy while digitising court proceedings.

“As laudable as this addition is, we must continuously introspect and protect the privacy of the accused as well as the victim when dealing with digitisation of proceedings and creating digital evidence. In the digital age, the data and sensitive information of persons has gained paramount importance. This data can allow us to gain unparalleled efficiency and ease. However, the power which comes with personal data puts a corresponding duty to make systems which are immune to penetration and leakage of the data,” he said.

The CJI said, “In the courts, we confront the challenges of data leak every day. The safety of a person, the stigma attached to an accused, the threat perception of a witness will be compromised if the privacy of the stakeholders is not protected. We must inspire public confidence in securing the privacy of our citizens to gain an overall efficiency and trust in the criminal justice system.”

He pointed out that “technology holds the key to a futuristic court system” and “eases the court procedures for the litigants, court staff, and the judges. In particular, clauses (iii) and (v) of Section 532 of the BNSS allow for the examination of witnesses and evidence through the electronic mode. The access ushered in by this provision will impact the access of witnesses to the courts, and reduce delays in trials on account of absence of witnesses”.

The CJI also underscored the need for infrastructure developments to meet the demands of the new laws.

“While the new criminal laws create provisions which are synchronised to our times, we must also ensure that the infrastructure accompanying these procedures are developed adequately for the country to reap the benefits of the new laws. This naturally means that we must heavily invest in capacity building of our forensic experts, conduct training of investigating officers, and invest in our court system. Key provisions of the new criminal law would only produce a positive impact if these investments are made as soon as possible,” he said.

In this context, he drew attention to the timeline prescribed for the completion of trials and pronouncement of judgments in the new laws, after the judgment is reserved.

“The BNSS provides that criminal trials must be completed in three years and that a judgment must be pronounced within 45 days of it being reserved. This stipulation is a breath of fresh air for addressing the issue of case pendency as well as the rights of the victim and the accused in a criminal case. However, if the court infrastructure and the prosecution lack material resources to harness technology and conduct an efficient and speedy trial then the guarantees of the BNSS may run the risk of becoming merely directory and unimplementable,” the CJI said.

He said that the new laws have adopted “citizen centric approaches…for supply of a copy of the First Information Report to the victim and to inform them about the progress of investigation, including by digital means”.

The CJI said that “additionally, the BNSS has made a positive development in protecting the fundamental rights of undertrial prisoners. Section 481 of the BNSS prescribes default bail for an accused person who has undergone one-third of the term of punishment for the offence charged against him. This is a reduction from the earlier prescription under the CrPC where an accused must have undergone half of the term in prison for the offence he is charged with”.

The BNSS, he pointed out, “prescribes that in cases where the punishment for the offence is seven years or more, the victim shall be given an opportunity of being heard before withdrawal of the case by the Government. Summary trial has been made mandatory for petty and less serious offences. The magisterial system has also been streamlined”.

The CJI said, “Our laws and their implementation is an ever evolving area. There is no finality to any law or the manner of its implementation. However, we must be willing to embrace positive changes to meet the needs of our times.”

He said he expects “that with the implementation of the new criminal laws, we will discover loopholes and areas which need to be addressed. Such debates would be helpful in enhancing the efficiency of our criminal justice systems. However, the ideological framework at the heart of our analysis must be justice oriented with a civil liberty centric approach which balances the interests of the victim and the accused”.

The CJI said, “The moral advantage of a criminal justice system in a democratic society is that it affords the victim an opportunity to reclaim their agency and confront an accused. It also lies in the fact that all persons, no matter how high or low, would get full opportunity to defend themselves before a court of law.”