RECONSTRUCTING CRIMINAL PROCEDURE AND ACCOUNTABILITY: A COMPARATIVE REVIEW OF ENFORCEMENT MECHANISMS, PUNISHMENT PHILOSOPHY, AND STATE POWER UNDER THE IPC, 1860 AND THE BHARATIYA NYAYA SANHITA, 2023

सार

This article evaluates the passage of India from the Indian Penal Code,1860 to the Bharatiya Nyaya Sanhita, 2023 as a major step in the development of a criminal justice system in India with respect to punishment philosophy, enforcement and state authority. The Penal Code was based on Colonial concepts of administrative control and deterrent punishment and placed an emphasis on punishment and sovereign state enforcement as major components of the criminal justice process. The Penal Code also remained largely unchanged with respect to basic principles of punishment, though some degree of progressive inclusion of constitutional principles through judicial interpretation had occurred. The Bharatiya Nyaya Sanhita will, through re-formulation of penalty, consolidation of present day offence categories and enhanced enforcement in the context of a democratic constitution, modernise the way that criminal law is defined and penalised.  This investigation is based solely upon secondary sources such as statutes, legislative documentation, court judgement, reports from the Law Commission and legal literature available free of charge (the majority of which may have been written after the original author). The present research starts by examining the system of penalties established under the Indian Penal Code that relies primarily upon abdicating to judicial discretion and has as its aim to deter crime.

Following the analysis of the general substance of the Bharatiya Nyaya Sanhita's reforms, the author reflects on how they relate to their specific focus on justice-focused language and alternative penalties, and how the Bharatiya Nyaya Sanhita's reforms are an innovative approach to identifying and rationalising penalties, when compared with the original state-based and punitive approach to penalties. The author also describes how the design and rationale for the two statutes' accountability mechanisms, enforcement mechanisms and redeployment of the state within a general context of the relationship between democracy and the constitution, would enable an effective implementation of governmental authority.

The evidence supports the view that the Bharatiya Nyaya Sanhita is an additional approach for reform. Although it maintains a substantial degree of continuity with the state-based and punitive model of the past, it also incorporates some modern features and provides increased clarity of concepts. Based on the outcomes and content of the report, it is clear that the administration of fair, proportional and accountable justice will depend on consistent institutional processes, legislative scrutiny, and an understanding of how legislation affects the daily operation of the customary and common-corrective judicial systems, not based on new criminal laws alone.