Opinion In new criminal codes, a missed opportunity

However, do all things need to change?

This question looms over the triumvirate of laws impacting India’s criminal justice system. The old laws, recently replaced, were established in the early 19th century, a time of significant transformation, upheaval, and the birth of ideas that shaped our nation’s legal framework. These laws were enacted during a period of intellectual ferment and reform, aiming for codification and uniformity amidst the inconsistencies of penal laws and procedures across British India. The 1st Law Commission of India, led by Jurist Lord Macaulay, undertook the initial work. His approach to legal drafting emphasised “uniformity where you can have it, diversity where you must have it, but in all cases certainty,” a principle that underpins all laws.

Returning to the question of change, the IPC addresses offences against the ordinary rules of morality and human behaviour. Crimes against the human body, women and children, property, or the administration of justice have existed for centuries and will persist for centuries. “Murder” will always be “murder,” regardless of the section number; it is not a colonial offence. Was there a need for change?

Interestingly, the BNS retains large portions of the IPC, introducing only 19 additional offences, none of which are new but drawn from other legislation. The BNSS introduces merely nine new sections, and the BSA has only two new sections. Some amendments have been made to several existing provisions. Consequently, there are no changes relevant to the evolving society and changing behaviours.

The 21st century thrives in a world driven by technology, the internet, readily available knowledge and AI. Geopolitical borders have largely dissolved, prompting governments to redefine their sovereign reach over this medium. We inhabit an environment that is “cyber”, “virtual”, “digital”, “electronic” and “data” driven. The world is now phygital (physical plus digital). A person’s castle includes not just their physical home but also their Facebook, Instagram, WhatsApp and other social media accounts, containing their most private thoughts and information. Biometrics, once personal, are now stored on servers and susceptible to theft.

The popular Netflix series Jamtara exposes a cybercrime hub in remote rural Jharkhand. The National Cyber Crime Reporting Portal of the Government of India recognises new-age crimes such as cyber bullying, stalking, sexting, email phishing, email hacking, impersonating profiles, online and social media crimes, online job fraud, online matrimonial fraud, intimidating emails, online gambling, and online trafficking. There are also deep fakes, and many more.

Yet, the BNS does not address these cyber aspects of crime. The terms “data” or “virtual” are absent, with “digital” appearing only once in Section 2(8), defining “document”. “Cyber” is mentioned only in the context of “organised crimes” in Section 111, without defining cybercrimes. “Electronic” is referenced only in relation to “electronic records /documents/signatures”.

It is unfortunate that data theft is not yet an offence since “data” may not fall under the definition of “property” within the BNS.

Change is inevitable and necessary, but not everything needs to change. Criminal law, evolved and legislated in the physical world, need not have been re-enacted. It has stood the test of time, evolving as social mores and societal demands required.

What the 21st century needed was a Bharatiya Abashi (virtual)/Digital Dand Sanhita or Bharatiya Abashi Nyaya Sanhita.

The Bangladesh Central Bank $100 million fraud was a technological hack into its computer system, with funds laundered instantly through its banking system to banks outside the country. AI-generated fake vocals of established singers like Drake, or the misuse of deepfake technology to generate fake voices of famous personalities like Amitabh Bachchan, or even videos like those of Rashmika Mandanna, are the crimes of this era. Complainants struggle in courts to ascertain whether intimidating emails fall within the framework of Sections 354 and 509 of the IPC. Companies grapple with defining theft of their data, be it intellectual property like designs or confidential information, under Section 378 of the IPC. We will soon be testing the implications of immoral and illegal behaviour in Meta and on Avatars. But all this is left for another day. This was where change was necessary.

When laws are drafted, especially those with penal consequences, there must be clarity and precision to prevent confusion, uncertainty, and potential misuse. Terrorism and organised crimes, borrowed from Section 15 of UAPA and Section 3 of MCOCA, are incorporated without the protections provided in their primary legislation. The decision to invoke terrorism under BNS is left to the discretion of an officer of the rank of SP and above, without any guidance, leading to arbitrariness and potential misuse. Concepts of “economic security” and “economic offences” are incorporated without definition, risking their application to commercial frauds, which could impact legitimate business and economic activity. The power to invoke these provisions is with local police officers across thousands of police stations. Misuse for extraneous reasons is well known to the judicial system. Unfortunately, there are no checks on any misuse of power in the legislation.

BNS, in its objectives, states that various offences have been made gender-neutral. However, “rape” remains gender-specific despite Section 377 IPC not being re-enacted. Bestiality is now no longer a crime. BNS also creates a new offence of attempting to commit suicide to compel or restrain from applying lawful power, which could be used against political dissent. Hunger strikes, a significant part of our history, could unnecessarily fall under this provision. This will affect political agitation, a fundamental right.

Technology outpaces the drafting of legislation. A quarter century is nearly over and we are yet to articulate a Sanhita for these dramatic changes in criminal behaviour. It is thus necessary to remember Justice Bhagwati’s observation, “…If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself… Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind.”

The legislative opportunity ought to have embraced these changes.

The writer is a senior advocate