Crime, generally speaking, is any act or a type of behaviour which is performed or executed and which in law constitutes an offense. It is behaviour that is inconsiderate to the settings of the culture hence quenched by both legislation and common law. For the purpose of jurisprudence in India, it is an act declared unlawful and is contrary to the feelings of the people as a whole (Ratanlal & Dhirajlal, 2007).
The Comprehension of Indian penal law underwent a sea change with the onset of colonization. This was in relation to the mission that the conquerors had to ‘civilise’ and systematise the laws through imposition of a more centralised and codified system. It resulted in the creation of the Indian Penal Code in 1860, the first coherent code covering all Indian offenses, which currently supports criminal law practice in India. Post-independence, India underwent a paradigm shift in its approach to criminal justice.
While the basic structure of the IPC remained essentially intact, there was a perceptible transition away from the colonial-era concentration on retribution towards a more reformative and rehabilitative model of justice. This transformation reflected the shifting society norms and a growing acknowledgment of human rights principles. Special attention will be made to recent developments, particularly the paradigm change represented by the Bharatiya Nyaya Sanhita 2023, which marks a considerable break from colonial-era legislation while adopting modern legal ideas. This transformation illustrates India’s effort to construct a criminal justice system that is both anchored in its cultural ethos and capable of tackling current difficulties.
The growth of criminal justice systems is a mirror of the ideals of society and altering conceptions of crime and punishment. Traditionally, the Indian Penal Code (IPC) of 1860 represented a retributive paradigm of justice, based on Victorian morality of the colonial period, in which punishment was considered as the sole answer to crime.
This paradigm focused on deterrence by precise penalties, with minimal attention to the core causes of criminal activity. But the advent of the Bharatiya Nyaya Sanhita (BNS) marks a dramatic departure from a retributive justice system. The new system focuses on rehabilitation, reconciliation, and reintegration, as it acknowledges that crime is often the result of social, economic, and psychological issues. In its focus on reformation over simple retribution, the BNS is a forward-looking and compassionate shift in the quest for justice
A Shift From Retributive Justice To Reformative Justice System
The traditional criminal justice approach, as was contained in the Indian Penal Code of 1860, was mainly retributive in character. It was concerned fundamentally with punishment as a principal response to crime and based on the principle that offenders must pay for their wrongdoing through fixed penalties. This is colonial legislation, reflecting Victorian morality and the British approach to justice wherein deterrence through severe punishments was placed above rehabilitation.[1]
The general trend towards reformative justice, evident particularly in Bharatiya Nyaya Sanhita, is an approach away from this paternalistic and punitive view of justice. It forms the very basis of a change in the attitude of the criminal justice system toward crime and criminals as well. Punishment, although necessary, is not the objective of the system of justice, but instead the reformation and rehabilitation of the offender so that he or she could one day be reintroduced into society as a useful citizen. The BNS incorporates modern criminological understanding that most crimes originate from social, economic, and psychological factors and needs punishment as well as rehabilitation.
A prominent characteristic of this transformation is that community service and treatment programs now take centre stage. While the IPC had often focused on imprisonment and fine, the BNS not only allows but also encourages alternatives to these like community service, counselling, and development of skills in useful activities. This transformation suggests that when offenders are placed in contact with positive influences within their communities and provided with opportunities for personal growth, it may prove more effective than the mere incarceration system in preventing recidivism.[2]
The BNS reforms equally give more importance to the principles of restorative justice and victim rights. Conversely, the effects of BNS put emphasis on reconciliation between offenders and their victims where appropriate as opposed to IPC’s which emphasizes punishment. Provisions for this include victim compensation and mediation processes, besides obliging offenders to make amends for their wrongs. These measures not only heal the wounds inflicted by the crime but also facilitate an understanding in the minds of the offenders of the consequences of their atrocities.
Mental health factors in criminal behaviour. This reform also identifies the element of mental health in the offenses. The IPC was less servicing for the provisions about mental health issues. The BNS acknowledges the contemporary knowledge of psychological issues and mental health disturbances and brings them into the sentencing process, like compulsory psychological examination before trial or at the time of conviction or sentence passing, involvement of treatment of mental health during rehabilitation etc.
The shift from IPC to BNS also reflects changes in how society views gender-related crimes. While the new system does take into account more wholesome provisions regarding crimes against women and children, it also lays greater emphasis on prevention and rehabilitation rather than punishment alone. In this regard, it has included particular counselling programs for offenders of gender-based violence and measures to identify and address the root causes of such crime.
Another main feature of the reformative justice system also advocated by BNS is education and developing the capacity of offenders for rehabilitation. For their part, traditional prisons operated under the IPC regime were essentially detention centres while education and vocational training schemes for prisoners were not established. Equipping released offenders with appropriate skills to live a law-abiding life has been the effect of the education and training programs instituted.[3]
Another big part of this change was technology integration. While the IPC was designed in the pre-digital era, the BNS realizes that both in crime and rehabilitation, technology exists: it has provisions for cybercrimes, digital evidence, and technology usage in monitoring and supporting rehabilitation programs involving offenders.
The new system also pays more attention to prevention and early intervention. Unlike the IPC, which is mainly reactive, the BNS has introduced measures designed to identify and intervene with people before criminal activities have developed or been pursued. Such provision includes counselling for at-risk individuals, community outreach programs, and juvenile offender intervention strategies.[4]
Conclusion
The transfer from the Indian Penal Code (IPC) to the Bharatiya Nyaya Sanhita (BNS) indicates a profound change in society’s view of justice and crime rather than merely a legal one. Starting from a retributive model that saw punishment as the major purpose, the BNS takes a reformative attitude promoting rehabilitation, reconciliation, and reintegration.
This change captures a more comprehensive view of crime, one that identifies it as a multifaceted problem impacted by psychological, social, and economical components. The BNS strives to cure offenders as well as the impacted communities by emphasizing community service, mental health care, victim-offender reconciliation, and skill development.
It understands that true justice goes beyond penalizing misconduct to include giving people chances to adapt and benefit their surroundings. Still, the success of this transformative technique hinges on its correct deployment. Establishing solid infrastructure to aid rehabilitation programs, training law enforcement and judicial authorities in reformative tactics, and stimulating community engagement in restorative justice endeavours will help to define the route forward.
Changing social attitudes from punitive to reformative viewpoints depends on public awareness activities. Moreover, tackling fresh concerns such cybercrimes and shifting social dynamics would demand on ongoing system assessment and change.
In the end, the BNS signifies a positive stride towards a more compassionate and equal justice system. By balancing punishment with reform, it has the power to lower recidivism rates, mend societal rifts, and foster a safer, more inclusive future. Staying committed to the ideals of reformative justice will allow us to make sure the system adapts to meet the demands of a changing environment while yet retaining its essential values of compassion and justice.
“[1] Community service: A progressive shift introduced by Bharatiya Nyaya Sanhita Live Law, https://www.livelaw.in/lawschool/articles/community-service-bharatiya-nyaya-sanhita-indian-penal-code-juvenile-justice-act-national-crime-records-bureau-260813 (last visited Nov 16, 2024)
[2] Retribution to reformation: Analysis of the new penal law Khurana and Khurana, https://www.khuranaandkhurana.com/2023/11/15/retribution-to-reformation-analysis-of-the-new-penal-law/ (last visited Nov 18, 2024)”
[3] Retribution to reformation: Analysis of the new penal law Khurana and Khurana, https://www.khuranaandkhurana.com/2023/11/15/retribution-to-reformation-analysis-of-the-new-penal-law/ (last visited Nov 18, 2024)
[4] Retribution to reformation: Analysis of the new penal law Khurana and Khurana, https://www.khuranaandkhurana.com/2023/11/15/retribution-to-reformation-analysis-of-the-new-penal-law/ (last visited Nov 18, 2024)
Author: Vaibhav Bansal is a student at National Law University and Judicial Academy, Assam
