The Union government has introduced three Bills in the Lok Sabha to completely replace the three major criminal laws in operation since centuries – the Indian Evidence Act, 1872, the Indian Penal Code, 1860, and the Code of Criminal Procedure, 1973. Together, these laws define a citizen’s interaction with the criminal justice system. Hence, one would have thought that any attempts at their complete overhaul would be a serious undertaking.
However, let alone the substantive changes made by them, their incomprehensible drafting gives rise to more confusion than anything that existed previously under the colonial laws. The provisions of the Bharatiya Sakshya Bill, 2023, which replaces the Indian Evidence Act, 1872, and the Bharatiya Nyaya Sanhita Bill, 2023 which replaces the Indian Penal Code, 1860 have glaring drafting errors and inconsistencies.
The Bharatiya Sakshya Bill, 2023 replaces the Indian Evidence Act, 1872, and yet, the Evidence Act sees perhaps the least number of substantive changes brought in by the new Bill when compared to the changes made to the rules contained in the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973.
The Sakshya Bill makes at least two major and welcome changes to the provisions earlier contained in the Evidence Act: (i) it streamlines the rules on electronic evidence; and (ii) expands the scope of secondary evidence.
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As for the latter, the Bill usefully plugs a loophole of the Evidence Act by accounting for written admissions as secondary evidence. This apart, it leaves the essential premises of what constitute ‘relevant’ facts to be considered by courts – as declared by the Evidence Act – unchanged. The other chapters of the Evidence Act, such as those on witnesses, burdens of proof, oral and documentary evidence, presumptions, etc. remain largely the same as in the Evidence Act. This in itself is a testament to the time-tested rules of logic crystallised in the Evidence Act centuries before the current ‘decolonisation’ efforts sought to revisit the three major criminal laws.
However, even though the substantive changes made to the Evidence Act are not many, the confusing drafting and misplaced provisos existing in the current form of the Sakshya Bill raise more questions than they answer.
Take for example the case of section 165 of the Bill dealing with the court’s power to order production of documents. Sub-sections (1) and (2) of the Bill deal with the broad contours of this power and the sub-section (3) deals with the specific power to give directions to translators.
The proviso that is attached to sub-section (3), however, is unmeaning in reference to it. It carves out an exception to the court’ s power to direct production of documents in favour of privileged documents between ministers and the President of India and should instead have been placed next to sub-sections (1) or (2) where the broader scope of the power is outlined, as opposed to the provision on interpreters. If this seems like a pedantic pointing out of an error with no substantive consequence, then the new provision on confessions under section 23 of the Bill raises the stakes involved with poor drafting.
Under the Evidence Act, confessions made to police officers, whether in their custody or outside, were considered inadmissible in courts by virtue of section 25. The widely recognised policy behind this exclusion, as also stated by Sir James Stephen who drafted the Act, was to disincentivize coercion often used by police officers to extract confessions. If evidence of the confession taken by the police could anyway not be used in courts, there would be no incentive to use torture to extract them – or so was the rationale.
Following broadly the same logic, the Evidence Act through section 26 additionally made inadmissible, confessions made in police custody to anyone other than a police office, unless in the immediate presence of a magistrate. However, section 27 of the Act which immediately followed these two provisions, made specific parts of such confessions known as ‘discovery statements’ admissible in courts – regardless of the restrictions outlined above – if an object was discovered further to such statements (such as the weapon of the offence). This exception for discovery statements has been widely criticised as diluting the original disincentive against using coercion to extract confessions.
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After all, if police can’t use the confession of guilt by an accused, it may still resort to coercion so that it can use that part of the statement which could lead it to the discovery of the object. Nonetheless, through a long line of decisions the Supreme Court has recognised (such as in State of UP v Deoman Upadhyaya,Mohmed Inayatullah v State of Maharashtra, and Aghnoo Nagesia v State of Bihar, etc.) that the discovery statement exception operated both to confessions made to police officers under section 25, and those made to anyone other than a police officer but in police custody under section 26.
Section 23 of the Bill incorporates all the above three provisions of the Evidence Act as separate clauses of one section. However, as it is currently worded, it appears that the proviso for discovery statements has been attached only to the second case of confessions in police custody, and not to the first case of confessions made to police officers generally. This means that the bar under the first category, i.e. confessions made to a police officer has been made absolute and even the discovery statement wouldn’t be admissible in case of such confessions. This certainly brings back the disincentive attached to confessions made to police officers with full force. This would be a welcome step towards enhancing the safeguards of accused persons.
However, it is not necessarily clear whether this indeed was the intention. This is not least because it would unsettle decades of jurisprudence on confessions as laid down by the Supreme Court, but also because the proviso could have been intended to operate to both the categories of confessions and is mistakenly attached only to the second one. Given the example of section 165 above, this being a result of simply bad drafting cannot be ruled out.
Nonetheless, it has substantive consequences for an important safeguard against coercion in the rules of evidence. Take another example of the presumptions as to certain documents and electronic records contained in sections 92 and 93 of the Bill, which say the ‘Explanations’ attached to sections 83 and 84 will also apply to the former two sections; except, no such ‘Explanations’ are to be found in the latter provisions.
It is unclear why the Bills have been rushed in without proper proof-reading on basic instances of drafting errors. These drafting errors are not unique to the Sakshya Bill. Take another curious case from the Bharatiya Nyaya Sanhita Bill 2023 which is intended to replace the Indian Penal Code, 1860.
The IPC provided that if an offence is committed under an intoxicated state of mind, then such intoxication was a defence for reduced sentencing if the intoxication happened against the accused’s knowledge or against their will. This is popularly known as the defence of ‘involuntary intoxication’ under the Code. Now consider the strange formulation under section 23 of the Nyaya Sanhita Bill – ‘Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; unless that the thing which intoxicated him was administered to him without his knowledge or against his will.’ By using the word “unless” instead of “provided that”, this provision seems to suggest the converse of the involuntary intoxication defence – that unless one is involuntarily intoxicated, they wouldn’t be considered as having committed the offence.
Accordingly, it leads to an absurd conclusion where voluntary intoxication becomes a valid defence in criminal law, and not involuntary intoxication! Similarly, see the Explanation attached to section 150 of the Sanhita which substitutes the offence of sedition under the IPC. It appears that the drafters of the Explanation forgot to complete the sentence itself, and we are left with a so-called ‘Explanation’ that does everything but explain this vital provision which is now to replace the law on sedition.
To bring in major changes to laws which have been in place for centuries could certainly be driven by genuine reasons to decolonize the criminal laws. However, the number of instances of poor drafting of these provisions betrays a sense of frivolity with which this major undertaking has been carried out.
The Chairman of the Rajya Sabha has referred the Bills to the Standing Committee on Home Affairs. It is hoped that these errors can be clarified and the rule on admissibility of confessions is stated with more certainty. Criminal laws, more than any other substantive law, most directly impact our liberties and fundamental rights. The task of their reform can’t be performed lightly.
Pranav Verma is assistant professor (law) at the National Law School of India University, Bengaluru. Views expressed are personal.
