India's Criminal Law After 1 July 2024

A shift in sentencing. Community service appears as a punishment for the first time in the general penal law, for a small number of minor offences. This is a genuine novelty in Indian sentencing and it sits with the reformative theory.

Procedure aimed at delay. The procedure code now fixes outer time limits for a number of steps: framing of charge, pronouncement of judgment after conclusion of arguments, and decision on discharge applications. Trial in absentia of a proclaimed offender is provided for. Videography of search and seizure and of statements in certain offences is mandatory. Whether time limits addressed to courts will work is a live question, and the chapter on speedy trial deals with the earlier judicial attempt to do the same thing.

Forensics. Visits by a forensic team are mandatory for offences punishable with seven years or more, which is the largest institutional bet the new codes make and is dealt with in the companion paper on forensic science.

The concordance a student needs

The provisions this book relies on, old and new. Learn the new numbers and know the old ones, because the case law is all under the old.

A worked example

Vikram Sawant is charged with an offence of causing grievous hurt said to have been committed on 12 March 2024. His co-accused Prashant is charged with a similar offence committed on 3 September 2024.

Vikram's case is governed by the old law. The offence was committed before the appointed day, so the Indian Penal Code supplies the definition and the punishment, and the repeal and savings provision preserves it. The procedure, however, follows the new code for steps taken after 1 July 2024, subject to the savings for proceedings already pending.

Prashant's case is governed throughout by the new law. The Sanhita defines the offence and fixes the punishment, and the new procedure applies from the start.

What a student should take from this. The two men did the same thing six months apart and their cases are governed by different statutes with different numbering, and in some instances different punishments. For the next several years an answer that does not say which law applies to which period has not answered the question.

What beginners get wrong

The Sanhita is not a translation of the Penal Code. Much is carried across in substance, and a great deal is renumbered, but there are real changes of content and treating the two as identical will produce wrong answers on organised crime, on sedition, on community service and on the time limits.

Old case law is not dead. Where a provision has been carried across in substantially the same words, the decisions on the old provision continue to govern its meaning. Where the words have changed, they do not. Working out which is which is now part of every criminal lawyer's job.

1 July 2024 is the appointed day, not the date of enactment. All three statutes received assent on 25 December 2023 and were brought into force by notification on 1 July 2024. Confusing assent with commencement is the commonest error in this area and the chapter on the Whistle Blowers Protection Act shows what happens when the two are far apart.

Quick revision

• Bharatiya Nyaya Sanhita 2023, 358 sections, replaced the Indian Penal Code 1860.
• Bharatiya Nagarik Suraksha Sanhita 2023, 531 sections, replaced the Code of Criminal Procedure 1973.
• Bharatiya Sakshya Adhiniyam 2023, 170 sections, replaced the Indian Evidence Act 1872.
• Assent 25 December 2023; in force 1 July 2024; savings preserve pending proceedings, so both bodies of law are live.
• Added: organised crime, petty organised crime, terrorist act, mob lynching as aggravated murder, snatching, community service as a punishment.
• Removed: sedition in its old form, attempt to suicide, adultery and same-sex conduct provisions.
• Procedure: outer time limits for charge and judgment, trial in absentia of a proclaimed offender, mandatory videography, mandatory forensic visits for offences carrying seven years or more.

Test yourself

1. Name the three new statutes, what each replaced, and the date they came into force. The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860; the Bharatiya Nagarik Suraksha Sanhita 2023 replaced the Code of Criminal Procedure 1973; the Bharatiya Sakshya Adhiniyam 2023 replaced the Indian Evidence Act 1872. All three came into force on 1 July 2024.

2. Why is the replacement of the codes a criminological event and not only a legal one? Because what a legislature adds to and removes from its general penal law is a statement of what it believes crime to be. Bringing organised crime and terrorism into the general code, adding mob lynching and snatching, and removing sedition in its old form and the offence of attempting suicide, together describe an official view of which harms now matter and which no longer justify punishment.

3. Two offences are committed a fortnight either side of 1 July 2024. Which law applies to each? The offence committed before the appointed day is defined and punished by the old statutes, preserved by the repeal and savings provisions; the offence committed after it is governed by the Sanhitas throughout. Procedural steps taken after the appointed day generally follow the new procedure, subject to the savings for pending proceedings.