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[India] Recent Updates on India’s Criminal Legislation Overhaul

In a groundbreaking move, the Indian Government recently passed three vital bills – the Bharatiya Nyaya Sanhita Bill, 2023 (BNS”), Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (“BNSS”), and Bharatiya Sakshya Adhiniyam Bill, 2023 (“BNA”) – replacing outdated legislations. Despite concerns about the absence of 97 suspended Members of Parliament during the session and the lack of comprehensive parliamentary debate, these bills received assent from President Droupadi Murmu on December 25, 2023. The swift withdrawal and modification of the initial bills further raise questions about the thoroughness of the legislative process in the Lok Sabha.

Bharatiya Nyaya Sanhita

BNS replaces the Indian Penal Code, 1860 and reduces sections from 511 to 356, modifying 175, adding 8, and repealing 22 sections. Key Features of BNS include—

1.     Contemporary Legal Structure: Aiming for a citizen-centric legal system, it introduces community service as punishment and ensures gender-neutral offenses.

2.     New Offences: Addresses organized crimes, terrorism, secession, and armed rebellion. Redefines ‘voyeurism’ and ‘assault to disrobe a woman’ to be gender neutral.

Defamation: Retains defamation as a criminal offence, with a two-year imprisonment option alongside the proposal for community service.

Bhartiya Nagarik Suraksha Sanhita

BNSS replaces the Code of Criminal Procedure, 1898 with 533 sections, amending 160, adding nine, and repealing nine sections. Key Features of BNSS include—

1.     Digital Transformation: The law digitizes the legal process, allowing video conferencing for the entire trial, inquiries, and proceedings, embraces technology for transparent search and seizure operations, and issues electronic summons and warrants.

2.     Conviction in Absentia: Permits trial in absentia for proclaimed offenders who evade arrest, allowing the court to proceed and pronounce judgment in the interest of justice with recorded reasons.

3.     Extended Police Custody: Allows magistrates to authorize up to 90 days of police custody for severe offences, raising concerns about potential intimidation and coercion.

Bharatiya Sakshya Adhiniyam

BNA replaces the Indian Evidence Act, 1872 increasing Sections from 167 to 170. Key Features of BNA include—

1.     Documents: Expands ‘documents’ to include electronic and digital records like emails, server logs, computer files, smartphone/laptop messages, websites, location data, and so on.

2.     Electronic Evidence: Defines ‘evidence’ to include electronically given information, allowing appearances through electronic means for witnesses, accused, experts, and victims.

Admissibility of Electronic Records: Acknowledges electronic or digital records’ legal validity and enforceability, treating them similarly to paper records.

India’s overhaul of criminal laws carries significant implications for businesses, introducing harsher penalties for economic crimes and a conviction-in-absentia provision that could complicate legal proceedings and impact bail outcomes. The absence of specific safeguards against technology misuse and the risk of double prosecution adds complexities for companies. Expanded powers allowing property seizure based on suspicion may require strategic adjustments in risk management for businesses operating in India. As the legal landscape evolves, businesses must closely monitor these changes, ensuring compliance and adapting strategies to mitigate potential risks associated with the revised criminal codes.

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