Navigating the Debates in India’s Criminal Justice Reform

India’s criminal justice system is at a crossroads. On one hand, the country has just enacted one of its most significant legal overhauls in decades – replacing colonial-era statutes with the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) effective July 1, 2024. On the other, deep structural debates remain unresolved – about which model of justice India should follow, whose rights get prioritised, how to tackle corruption and organised crime, and what role the media should play. Understanding these debates is not just academic; it shapes the future of justice for over 1.4 billion people.

Adversarial vs. inquisitorial: the foundational debate 🔗

India follows an adversarial system of criminal justice, inherited from British colonial rule. In this model, the prosecution and defence present competing cases before a neutral judge, who acts as an umpire. The burden of proof rests squarely on the prosecution to establish guilt beyond reasonable doubt. The presumption of innocence is a non-negotiable cornerstone.

The competing model is the inquisitorial system, followed in countries like France and Germany, where the judge actively participates in fact-finding and evidence collection rather than passively presiding over a contest between parties. Proponents argue this system is more effective at discovering the truth and results in higher conviction rates.

The debate peaked with the Justice V.S. Malimath Committee Report (2003), commissioned by the Ministry of Home Affairs. The Committee found serious dissatisfaction with India’s adversarial system across several High Courts – particularly in Jharkhand and Uttaranchal, which opined that the adversarial system had outright failed. The Committee recommended giving courts an explicit duty to search for truth, expanding judicial powers to summon evidence independently, and making statements to police admissible under certain safeguards – features drawn directly from the inquisitorial tradition.

However, the International Commission of Jurists (ICJ) strongly cautioned against this shift, warning that moving toward inquisitorial elements – especially making police confessions admissible – would threaten the presumption of innocence, the right to silence under Article 20(3) of the Constitution, and the burden of proof on the prosecution. These are not just procedural niceties; they are India’s obligations under international human rights law.

The consensus that has emerged is not an either/or choice. As India Law Journal notes, India’s system is already a hybrid – Section 165 of the (now replaced) Indian Evidence Act allowed judges to put questions to witnesses, an unmistakably inquisitorial element. The real debate is about how far this hybridisation should go, and with what safeguards.

Right to silence, presumption of innocence, and burden of proof 🔗

These three principles form the ethical backbone of India’s criminal justice framework and are at the heart of every reform debate. The right to silence, protected under Article 20(3) of the Constitution, means no person can be compelled to be a witness against themselves. The presumption of innocence requires the state – not the accused – to prove guilt. And the standard of proof (beyond reasonable doubt) sets a high bar deliberately, to protect the innocent.

The Law Commission of India’s 180th Report explicitly warned that diluting the burden of proof would be contrary to basic principles of fairness. Yet, in special legislation targeting terrorism – such as UAPA and the earlier POTA – several of these safeguards have already been curtailed, with longer police custody periods and admissibility of confessions before police officers. The debate about whether such exceptions should bleed into ordinary criminal law remains active and contentious.

Victim-centric justice: a long-overdue shift 🔗

For decades, India’s criminal justice system treated victims largely as witnesses for the prosecution rather than as parties with independent interests. Reform debates have increasingly challenged this. A victim-oriented approach demands that victims receive timely information about case progress, have a voice in bail and sentencing decisions, and receive compensation as a matter of right – not charity.

The BNSS, 2023 takes meaningful steps in this direction by institutionalising structured victim compensation, mandating that victims be informed of investigation progress, and allowing e-FIRs for greater accessibility. The Bharatiya Sakshya Adhiniyam (BSA) now mandates audio-video recording of statements from rape victims – a measure aimed at reducing re-traumatisation and improving the reliability of testimony.

Yet critics point out that structural barriers remain. Victims still lack standing as a full party in criminal trials, and compensation mechanisms remain inconsistently implemented across states. The broader demand is for a restorative justice model – one that focuses on healing, accountability, and reintegration alongside punishment.

Police and prosecution reforms 🔗

Police reform is arguably the most contested and politically charged area of India’s criminal justice debate. India had approximately 195 police personnel per lakh population as of 2022, well below the UN-recommended standard, and chronic understaffing undermines the quality of investigation at every level.

The BNSS addresses some procedural concerns – mandating fixed investigation timelines (90 days for offences punishable with under seven years; 180 days for serious crimes), requiring audiovisual recording of searches and arrests, and introducing forensic examination as mandatory in offences punishable with seven or more years of imprisonment. These are genuine improvements in accountability.

However, civil rights groups have raised alarm over the BNSS’s expansion of police custody from 15 to 90 days – a provision with significant potential for misuse, particularly against vulnerable populations. The Internet Freedom Foundation flagged that the new laws were passed with limited public consultation, and that expanded arrest and detention powers risk eroding fundamental rights without corresponding oversight mechanisms. The independence of prosecutors from police influence – long a structural weakness – also remains inadequately addressed.

Witness protection: a critical gap 🔗

Hostile witnesses are a chronic problem in Indian criminal trials. Over 50% of witnesses turned hostile in serious cases under the old CrPC regime, with no comprehensive statutory framework for their protection. The BNSS now encourages video recording of witness statements and introduces measures against witness intimidation – but critics argue that a dedicated, comprehensive Witness Protection Act with structured safe houses, identity concealment, and relocation provisions remains absent at the national level.

The Bureau of Police Research and Development has acknowledged witness protection as one of the most critical reforms needed for the success of the new criminal laws. Without it, even the best procedural framework falls apart when witnesses are coerced into retracting truthful testimony.

Organised crime, terrorism, and special procedures 🔗

The BNS, 2023 formally codifies organised crime and terrorism as distinct offences for the first time in India’s general criminal law. Organised crime is defined to include kidnapping, extortion, and cybercrime committed on behalf of a crime syndicate; terrorism is defined as acts intended to threaten national security or disturb public order. Previously, these were addressed primarily through special laws like UAPA and MCOCA.

The debate here is procedural: should offences of this nature be tried under ordinary criminal procedure, or do they require special courts and modified evidentiary rules? The Standing Committee on Home Affairs (2023) recommended providing separate criminal procedures for organised crime within the BNSS itself, noting that inconsistency between UAPA trials and BNSS trials for similar offences creates an uneven justice landscape. This recommendation has not been fully implemented, leaving the debate open.

Gender-specific crimes: persistent failures and evolving demands 🔗

No area of criminal justice reform in India generates more debate than crimes against women. Despite a wave of legislative reform after the 2012 Nirbhaya case – and further amendments in 2018 post-Kathua – the systemic response to sexual violence remains deeply inadequate. Research published in the American Political Science Review (2024) found that suspects accused by female complainants are actually less likely to be convicted, with gender gaps persisting even when controlling for the type of crime.

The BNS, 2023 has been criticised for missing a crucial opportunity. The Criminal Law Blog (NLU Jodhpur) points out that rape law provisions are almost unchanged from the IPC, marital rape remains uncriminalised – leaving India among approximately 36 countries that do not recognise it as a criminal offence – and the deletion of Section 377 without an adequate substitute has removed the only legal remedy available to male and transgender victims of sexual assault. The Justice Verma Committee had in 2013 recommended gender-neutral rape laws, but this was rejected; the BNS perpetuates that omission.

The debate extends beyond legislation to judicial mindset. As documented in research on gender stereotyping in Indian courts, patriarchal assumptions have historically shaped judicial reasoning in sexual violence cases – from the notorious 1979 Tukaram ruling to more recent remarks by senior judges. The call for mandatory gender sensitisation training for judges and prosecutors, fast-track courts dedicated to gender-based crimes, and anonymous reporting mechanisms forms a key strand of the reform debate.

Corruption within the system 🔗

Corruption in criminal justice – police tampering with evidence, prosecutors accepting bribes, witnesses being bought – is not an anecdotal problem; it is a systemic one that undermines every layer of reform. High-profile cases like the R.G. Kar rape and murder case in Kolkata (2024), which exposed alleged police cover-ups, illustrate how institutional corruption can obstruct justice even when the law is formally adequate. The removal of corruption from criminal justice – through independent oversight bodies, police complaints authorities, and prosecutorial accountability mechanisms – is identified in both the Malimath Committee report and subsequent Law Commission reports as a prerequisite for any meaningful reform. Without it, new laws risk becoming new avenues for the same old abuses.

The media’s role: accountability vs. trial by television 🔗

Media – particularly television news – has become an unavoidable actor in India’s criminal justice landscape. Investigative journalism has exposed corruption, forced reluctant agencies to act, and kept public pressure on slow-moving cases. The Nirbhaya protests of 2012 and the R.G. Kar case protests in 2024 were both amplified by media coverage that forced legislative and institutional responses.

The flip side is the phenomenon of media trials – where extensive pre-trial coverage shapes public opinion, pressures courts, and can compromise the right to a fair trial. Debates about how to regulate sub-judice reporting, protect the presumption of innocence in the public sphere, and distinguish responsible accountability journalism from sensationalism are far from settled. India has no comprehensive statutory framework governing media reporting on pending criminal cases, and this gap is increasingly seen as a serious lacuna.

The need for a national criminal justice policy 🔗

Perhaps the most important meta-debate is about coherence. India’s criminal justice reform has proceeded through piecemeal committee reports, ad hoc legislative amendments, and reactive post-outrage reforms. The Draft National Policy on Criminal Justice, developed under the chairmanship of Prof. N.R. Madhava Menon (2007), called for a holistic, planned approach – integrating police, prosecution, judiciary, prisons, and victims’ services under a unified national vision. That vision remains largely unrealised. The BNS, BNSS, and BSA are important steps, but they address procedure and substantive law without embedding those changes within a broader policy architecture that sets goals, allocates resources, and measures outcomes. Training and continuing education of all criminal justice personnel – judges, prosecutors, police, and prison staff – is identified repeatedly as the single most impactful lever for quality, fairness, and efficiency.

India’s criminal justice reforms are no longer theoretical debates confined to committee rooms. With three new foundational statutes now in force, the real test is implementation – whether courts will be faster, police more accountable, victims better protected, and witnesses safer. The structural debates about adversarial versus inquisitorial models, victim rights, gender justice, and organised crime will continue to shape how those laws are interpreted and applied for decades to come.

What do you think? Should India move further toward an inquisitorial model to improve conviction rates – even if it means curtailing some rights of the accused – or is the adversarial system’s protection of individual liberty too important to compromise? And given that three major criminal laws have now replaced colonial-era statutes, do you think procedural reform alone is sufficient, or does meaningful criminal justice reform require a deeper change in institutional culture – particularly within the police and judiciary?

References

1. https://prsindia.org/billtrack/overview-of-criminal-law-reforms
2. https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf
3. https://www.icj.org/criminal-justice-reform-must-meet-international-human-rights-standards/
4. https://www.indialawjournal.org/the-power-of-judge-to-put-questions-an-exception-to-adversarial-justice-system.php
5. https://www.egyankosh.ac.in/bitstream/123456789/38755/3/Unit-4.pdf
6. https://thelegalquorum.com/criminal-law-reform-in-india-a-legal-analysis-of-the-bharatiya-nagarik-suraksha-sanhita-2023/
7. https://vajiramandravi.com/current-affairs/bharatiya-nagarik-suraksha-sanhita-2023/
8. https://internetfreedom.in/three-new-criminal-law-bills/
9. https://bprd.nic.in/uploads/pdf/1725273999_10c3ed6ede64b4c3cf6b.pdf
10. https://prsindia.org/billtrack/the-bharatiya-nyaya-sanhita-2023
11. https://www.cambridge.org/core/journals/american-political-science-review/article/does-victim-gender-matter-for-justice-delivery-police-and-judicial-responses-to-womens-cases-in-india/81E4CE479AECAC3CEB4024FFE273565F
12. https://criminallawstudiesnluj.wordpress.com/2024/07/25/beyond-technicalities-a-call-for-judicial-sensitivity-in-indian-rape-cases/
13. https://www.tandfonline.com/doi/full/10.1080/23311886.2022.2116815