SWARAJ AND THE LAW: DECOLONIZING CRIMINAL PROCEDURE UNDER THE BHARATIYA NAGARIK SURAKSHA SANHITA

SWARAJ AND THE LAW: DECOLONIZING CRIMINAL PROCEDURE UNDER THE BHARATIYA NAGARIK SURAKSHA SANHITA

ABSTRACT

The move from the erstwhile colonial-Era Criminal Procedure Code to Bhartiya Nagarik Suraksha Sanhita, 2023 marks a crucial milestone in the criminal justice system of India. This paper studies the historical development of criminal procedural laws in India with special reference to the influence of Colonialism and the need for reforms. The BNSS provides major changes such as forensic investigations, digitalization of records, speedy trial processes, and increased rights of the Accused. It also engenders people's-oriented and restorative justice systems based on the idea of Swaraj - self-governance, freedom from sovereignty - in the decolonization of that particular legal framework. It critically investigates the impact of these changes, the problems involved in the implementation of these changes, and the likely long-term implications of these changes in the Indian legal landscape. The present study compares CrPC with BNSS along with corresponding case law interpretations to argue that although the BNSS heralds progress and efficacy in enforcement and due process safeguards remain important. Besides, it incorporates community and restorative justice models inspired by the Gandhian principle of Swaraj-that is self-governance and decolonization from that legal framework. The study critically evaluates the implications where the hurdles in implementing the future prospects of such developments along the path of Indian legal history. Through the comparative analysis between provisions under CrPC and BNSS as well as case law interpretation, this paper argues that even though the BNSS stands towards progress, there still remains the need of ensuring effectiveness in its enforcement and due process. Thus recommends further course toward an integrative indigenous tradition in the judicial system to make it modern yet culturally appropriate[1].

1.1. INTRODUCTION

The criminal justice system of India has experienced significant transition from an entirely ancient custom to a properly structured law system. This transition marks a key moment from the Code of Criminal Procedure (CrPC) to the Bharatiya Nagarik Suraksha Sanhita (BNSS). This is largely to modernise the criminal procedures of the country and make them efficient. The entire criminal justice system had its origin in the olden days when justice was meted out according to the norms and customs of the society. In the Vedic period-'Dharma' determined the moral and legal obligations of people, and the King had to ensure compliance to it. In time, with the advancement of societies, methods of dealing with crimes and disputes also evolved.

Islamic jurisprudence reached the medieval period especially in the parts ruled by Muslims. The legal integration between Islamic laws and the local law was a major source of pluralization in the law. British colonialism was a major break. The British codified laws with the idea of uniform control. The first and most comprehensive criminal code, the Indian Penal Code (IPC), was brought into force in 1860. It thus defined offences and their punishments. And then came the Code of Criminal Procedure (CrPC) in 1882 with the procedural aspects of criminal law. The CrPC was amended, the major change appearing to be in 1973 when that version remained intact until replaced recently.

1.1.1. Crpc To Bharat Nagarik Suraksha Sanhita (BNSS)

This was in recognition of the necessity for reform and modernization of criminal procedures, and for the Bharatiya Nagarik Suraksha Sanhita, the Indian government rolled it out in 2023 to replace the CrPC, with a modern legislation that would make it possible. BNSS was introduced into the Lok Sabha on August 11, 2023. After further discussion, it received presidential assent on December 25, 2023, and comes into force on July 1, 2024. The BNSS seeks to consolidate and amend the current laws concerning criminal procedure so that they are reflective of modern society and advances in technology[2]. Some of the major provisions include those relating to

1. Forensic Investigations - Forensic compelling investigations for crimes punishable with seven years' imprisonment or more; scientific means of taking evidence must accompany it.
2. Rights of Accused - It fortifies safeguards for individuals, entitling one to having legal representation during interrogation and fair trial procedures.
3. Procedural Efficiency - It intends to lessen the time delays through streamlining the processes by setting time bounds for investigations and trials.
4. Digitalization - It will consist of technology-required methods for adopting electronic records and other digital applications.

1.1.2. Research Objective and Scope

1. Judging the advancement of the criminal procedural laws in India from ancient times to present with respect to the colonial influences.
2. Estimate the justification of replacing the CrPC with the BNSS as well as those social legal aspects that called for such change.
3. Determine and analyze key differences between the two codes, concentrating mainly on procedural changes, rights of the accused, and investigation processes.
4. Examine the challenges in the implementation of BNSS such as training law enforcement, judicial adaptability, and public awareness.
5. Speculate on the impacts of the BNSS on India's criminal justice system in years to come, such as case backlog, conviction rates, and public trust.
6. Completely review legislative texts and government reports.
7. Analyse case laws as well as judicial interpretations.
8. Interview legal practitioners and law enforcement officials.
9. Do empirical studies on the performance of the criminal justice system before and after the implementation of BNSS.

1.2. CRIMINAL PROCEDURE UNDER BNSS

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is to achieve the replacement of the ancient British Criminal Procedure Code (CrPC), 1973. Its agenda is that of modernizing the criminal justice system in India. Here is an analysis of the critical amendments that have been brought in the BNSS alongside their citations and critical evaluation of their implications[3].

1.2.1. Detention of Undertrials

1.2.2. Forensic Investigation

1.2.3. Medical Examination upon Arrest

1.2.4. Zero FIR

1.2.5. Attachment and Forfeiture of Property

1.2.6. Procedural Efficiency

1.2.7. Rights of the Accused

1.3. CORE JURISPRUDENTIAL PRINCIPLE & ITS COLONIAL ROOTS

India's criminal justice system has been very much affected by colonial history. The legal structure formulations that were created during the British regime are still applicable and used in the present-day jurisprudence in India.

1.3.1. Colonial Foundations of Indian Criminal Jurisprudence

Transformation of the legal landscape of India took place during the period of British colonialism. Pre-colonial India was governed by a kind of interaction between indigenous customs and Islamic law mainly of Mughal impact. The British tried to induce a uniformity in their law, incorporating codified laws that often-ignored existing local customs. The outcome happened well with the Indian Penal Code (IPC) in 1860, the effect of which was made actual in 1862. Framed under the guidance of Lord Thomas Babington Macaulay, the IPC was designed as a comprehensive code of criminal law for India, prolific from English law and also borrowed from other sources. The purpose of such codification was to substitute a large number of diverse and varied legal practices with a standard set of laws valid on and for the whole colony[7].

The Code of Criminal Procedure (CrPC) introduced in 1861 dealt with the procedural aspect of criminal laws relating to the investigation, trial, and punishment of offenders. This code helped to lay the foundation for the administration of criminal justice in colonial India as it had to be in line with all the new substantive laws. Some Theoretical Bases of Colonial Criminal Procedure. British ideas have once again been fanciful in creating a legal apparatus in India's criminal law by utilitarian principles which have been that "the greatest number of persons would act well for the greatest good". Within this view, there has been stress on deterrence and uniformity[8]. Thus, it has sought an efficient and predictable system in its social justice administration. The codification of laws was also expected to achieve this as clear guidelines were given both to the enforcers and the subjects of the law. However, the imposition of this supposedly uniform legal framework usually resulted in the marginalization of traditional laws and was out of sync with social and cultural realities prevalent in India. The colonial system was such that it was to meet the needs of the administration of the British Empire, which denuded local customs and norms

1.3.2. Post-Colonial Transfer and Contemporary Problems

The legacy of training by the colonial legal framework in 1947 was inherited by independent India. While the IPC and CrPC found amendments meant to address contemporary issues, the overall structure remained as rooted as ever on colonial jurisprudence. Continuing debate has been on the relevance and applicability of some of these laws and procedures to the modern Indian context. There are ways that have been tried to reform the criminal justice system to reflect more indigenous values and the rich cultural tapestry of India. Recently introduced legislative measures are aimed at decolonizing the legal framework that resonates with lived experiences of citizens while addressing the real-life intricacies of contemporary Indian society. In brief, Indian criminal jurisprudence holds strong roots in its colonial past since most foundational laws laid down during British rule remain operative and relevant even now. The task now is to change this framework to accommodate indigenous legal norms while also transforming it into a contemporary societal requirement. The colonial antecedents have greatly influenced the criminal justice system in India and the fundamental legal frameworks, established during British rule, continue to echo in present-day thought. The colonial legacy has spawned a debate about the decolonization of the law and justice systems wherein the emphasis is on the necessity for the systems to mirror local values and community-centered approaches.

1.3.3. Swaraj Viewing Frame: Critical Review

The concept of “Swaraj” means self-governance and autonomy, one that extends beyond political independence to self-determination culturally and intellectually. In “Hind Swaraj”, Gandhi critiques Western legal systems on the grounds of the sovereignty of indigenous traditions and systems of justice. He held that the imposition of alien laws on the people of India by lawyers as an instrument of oppression was tantamount to subjugating the people of India. He was in favour of wrongs being resolved through local community mechanisms[9].

1.3.4. Decolonizing Law and Justice Systems

The decolonization of the legal system means dismantling colonial imprints and reviving indigenous legal traditions in harmony with the socio-cultural fabric of the nation. It is an endeavour not merely about getting alternative laws, but more so on how justice itself is envisaged in consonance with local values and practices[10]. Recently, in India, law reform was seen as replacing laws stemming from colonialism with laws reflecting rehabilitation, reformation, justice, gender equality, and accessibility, with a much greater focus on justice instead of oppression.

1.3.5. Shortcomings of State-Centred Criminal Procedure

The state-centred criminal justice system primarily displaying adversarial and punitive features ignores socio-cultural realities of crime and penalizes the victims and the communities involved. This easily translates into congested judicial institutions and alienated societies. Social experiments reveal that such systems may fail, in fact, to render timely justice, thereby serving to further aggravate divisions within the society.

1.3.6. Reimagining Criminal Justice: A Swaraj-Based Model

The Swaraj-based criminal justice model emphasizes self-governance, community involvement, and restorative practices. Repairing harm, promoting accountability, and restoring relationships are intended to counter the punitive solution, fostering social harmony. In this regard, implementing restorative justice in India has not only expedited resolving cases, reducing the burden on judicial institutions, but most important also satisfied both victims and perpetrators in their quest for justice.

1.3.7. Indigenous & Restorative Approaches

Indigenous justice systems tend to prioritize restoration over punishment and community cohesion. These practices remain rooted in spirituality and collective well-being: healing the damage done by wrongful conduct. Incorporating such approaches could yield justice outcomes more culturally resonant and efficacious. Indigenous tribes adopting restorative justice models have seen regenerated jurisdiction and enhanced well-being among their members[11].

1.4. CASE STUDIES ON COMMUNITY-CENTRIC LEGAL PROCESSES

The village of Pachgaon in Maharashtra illustrates an exemplary instance of community-based legal remedies. Consequent to gaining community forest rights in 2012, the village transitioned from squalor to affluence through local management of bamboo resources[12]. This collective effort resulted in economic development, job creation, and enhanced social infrastructure, thus demonstrating the potency of community-driven models toward sustainable growth and justice. The Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023 is a legislative enactment very recently passed. Cases in judiciary interpretation are still going. However, one of these is one concerning application. In Suby Antony v. R1 (2025), looked into the procedural requirements under Section 223 of the BNSS by the Kerala High Court. The petitioner alleged that the Magistrate erred in the issuance of notice to the accused without taking the evidence of the complainant and witnesses under oath. Justice V.G. Arun explaining as per subsection 223 of the procedure, said that examining the complainant and witnesses under oath would be necessary in the first instance, and later, if any offense cognizance was taken by a Magistrate, the accused would get an opportunity to be heard thereby so that the rights of the accused are not compromised by requiring to heed them too soon. The court said that giving notice to the accused prior to taking cognizance would be procedurally wrong. This is an instance of demonstrating the BNSS balancing complainant and accused rights.

1.5.CONCLUSIONS AND SUGGESTIONS

Many significant recommendations arise from the evolution of the penal justice system in India from colonialism to a more indigenous and people-centred justice today. Hence, if justice is to be delivered to the people in an accessible, efficient, and culture-oriented manner, then the transition to Swaraj will also include the restorative and community-driven justice approaches that underscore reconciliation more than punishment[13]. Presently the state-centred penal procedure has been inherited from the colonial past, which naturally circumvents the socio-economic reality of the people who serve as victims, communities, and offenders.

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