Introduction:
The recently enacted Bharatiya Nyaya Sanhita, 2023 (BNS) which repeals and replaces the
Indian Penal Code, of 1860, (IPC) is introduced to repeal colonial laws and include the
provisions of offences against women and children and offences against the State. The Sanhita
proposes several changes, it has incorporated certain changes in the penalties and introduced
community service as punishment for petty offences. In the BNS, 20 new offences have been
added, while 19 provisions from the IPC have been removed. Let us now discuss the major
changes from IPC to BNS.
Definitions :
The previous penal code lacks a dedicated definition clause but includes an interpretation
clause spanning from section 8 to 52A, IPC. In contrast, BNS features a distinct section, namely
section 2, specifically designated for definitions. This section condenses the provisions covered
in the interpretation clause of the IPC, arranging them systematically in section 2 of BNS.
Notably, there are some additions and omissions in these provisions, reflecting considerations
for the evolving nature of time and crime.
A revised definition for ‘child’ now appears in Section 2(3) of BNS, and a new definition for
‘transgender’ has been incorporated in Section 2(10) of BNS. Additionally, modifications have
been implemented in the definitions of ‘court’ as per Sec. 2(5), ‘document’ under Sec. 2(8) which
now encompasses electronics and digital records, and ‘movable property’ under Sec. 2(21),
among others.
Offences:
– Offences against property:
The BNS introduces significant amendments in various sections, it has now clubbed
certain offences and has also changed the punishment and penalties of fines for certain
offences. Firstly, dishonest misappropriation of property under section 314 now holds
a punishment of six months, with the option of imprisonment and fine, emphasizing a
stricter stance on this offense. Secondly, BNS consolidates criminal breach of trust
offenses from Sections 406 to 409 of the IPC into Section 316, increasing the
punishment to a potential five-year imprisonment compared to the previous three years.
Lastly, cheating offenses specified in Sections 417, 418, and 420 of the IPC are
amalgamated into Section 318 in BNS, with the punishment for general cheating
extended to three years and a more severe form of cheating potentially resulting in a
five-year imprisonment, both representing increases from the previous penalties under
the IPC. These amendments reflect BNS’s efforts to enhance legal consequences and
address evolving criminal complexities.
Of offences against the human body :
The BNS has introduced several important changes. Firstly, Section 111 which is
inspired by the state legislations like the Maharashtra Control of Organised Crime Act,
1999 (MCOCA) and the Gujarat Control of Organised Crime Act, 2015 (GCOC) is
incorporated in the Sanhita which introduces the offence of ‘Organised Crime’. The
term includes offences like kidnapping, abduction, extortion, contract killing,
cybercrimes etc. Nevertheless, the definition of the offence faces criticism due to its
lack of clarity and resilience on terms like ‘land grabbing’ and ‘mass-marketing fraud’
that are not explicitly defined. Secondly, section 112 defines ‘petty organized crime’
with subjective terms, leaving room for discretion in prosecution. Moving forward
Sanhita has introduced a notable change in the offence of causing death by negligence,
section 106 where the punishment is increased to imprisonment up to five years and a
fine. BNS deals with particular offences resulting from negligence, including incidents
such as death during a medical procedure, hit-and-run cases, and mob lynching.
Noteworthy is BNS’s omission of specific offences like Section 377, aligning with the
Supreme Court’s ruling in Navtej Singh Johar V. UOI’s case, and the exclusion of an
attempt to commit suicide, acknowledging it as a mental health crisis rather than a
criminal act. Furthermore, BNS chooses not to classify adultery as an offence, despite
previous suggestions and recommendations of the Standing Committee. These
alterations demonstrate an intention to align with shifting societal norms and legal
viewpoints.
– Offences against the State :
The BNS omits the offence of Sedition. However, it chooses to penalize actions like
exciting or attempting to excite secession, armed rebellion, or subversive acts, fostering
sentiments relating to separatist activities jeopardizing the sovereignty or unity and
integrity of India. These offences might encompass verbal or symbolic expressions,
electronic communication, or the utilization of financial resources. The BNS defines
Terrorism as an act that intends to threaten the unity, integrity and security of a country,
intimidate the public, or disrupt public order. Penalties for attempting or committing
terrorism involve death or life imprisonment along with a Rs 10 lakh fine in case of
resulting death, or imprisonment ranging from five years to life, accompanied by a fine
of at least five lakh rupees.
Concerns:
Lack of clarity in certain definitions :
The inclusion of certain definitions in the BNS raises concerns about their practical
applications. The BNS substitutes ‘unsound mind’ with ‘mental illness’, which is
defined in the Mental Healthcare Act, of 2017. Yet, this updated description, which
omits mental retardation, could potentially leave individuals with mental retardation
without the legal safeguards afforded in criminal trials. Additionally, the BNS’s
characterization of alcohol and drug abuse as a type of mental illness goes against the
IPC’s defence for intoxication, creating a contradiction. Furthermore, Sanhita presents
challenges by categorizing alcohol and drug abuse as a form of mental illness, which
contradicts the IPC’s defence of intoxication. The broad definition of terrorism in the
BNS, including acts aiming to disturb public order, raises concerns about categorizing
a range of offenses as terrorist acts, leading to ambiguity. Similarly, the definition of
petty organized crime lacks clarity, with undefined terms and criteria for causing a
“general feeling of insecurity.” These concerns have led to suggestions for a
reconsideration of the provisions by the Standing Committee on Home Affairs in 2023.
Cris- crossing with the existing special laws :
The BNS shows an intersection with the provisions of certain existing special laws,
resulting in duplication and inconsistencies in penalties for the same offences. A
question herein remains unanswered what is the objective of incorporating such a clause
in the Sanhita when there already exist special laws criminalizing similar acts? For
instance, when we consider the offence of a terrorist act it significantly overlaps with
the Unlawful Activities (Prevention) Act, 1967 (UAPA) the definitions in both laws
mirror each other, and the issue extends to the point of similarities among the provisions
related to conspiracy, membership in a terrorist organization, harbouring, and
possession of property obtained from terrorist acts. The BNS also acknowledges this
overlap and gives powers to the Superintendent of Police to decide under which law to
register a case. There are also certain other legislations that shares overlapping offences
like The Drugs Cosmetics Act, of 1940 which deals with the adulteration of drugs and
its sale, The Food Safety and Security Act, of 2006 which deals with the adulteration
of food or drink for sale, The motors vehicles act, 1988 which deals with rash driving,
Juvenile Justice Act, 2015 which deals with the offence of abandoning a child, etc.
This overlapping may impose additional compliance burdens and costs potentially
leading to varying penalties for identical offences under different laws. Eliminating
such duplicated offences in the BNS could streamline regulations, mitigate
inconsistencies, and simplify the regulatory landscape.
Other Concerns :
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNS), introduces distinct penalties for
murder committed by five or more individuals based on identity grounds, such as race,
caste, or community, with imprisonment ranging from seven years to life imprisonment
or death, accompanied by a fine. However, the minimum penalty for this group murder
is lower than that for individual murder, posing a lack of clarity in the rationale behind
the disparity. The Standing Committee on Home Affairs (2023) recommends removing
the seven-year imprisonment clause. In addressing offenses against women, the BNS
retains the IPC’s rape provisions, but certain recommendations, such as redefining rape
and increasing penalties for specific offenses, remain unaddressed. The BNS eliminates
the offense of adultery but retains related provisions. In dealing with sedition, the BNS
removes the IPC’s sedition offense but introduces provisions targeting secession, armed
rebellion, or subversive activities, potentially retaining aspects of sedition. Solitary
confinement, permitted by the IPC, continues in the BNS despite previous
recommendations against it. The introduction of community service as a punishment
lacks clarity, prompting the Standing Committee’s recommendation for a clear
definition.
Conclusion:
In conclusion, the Bharatiya Nagarik Suraksha Sanhita, 2023, introduces positive changes,
removing sedition as a criminal offence and incorporating transgender in gender definitions,
and the expansion of stringent measures against offences targeting women and children.
Nevertheless, the amendments lack a cohesive policy framework, especially in addressing
crimes against women. Despite introducing new provisions on sexual offences, BNS retains
marital rape as an exception and fails to make rape a gender-neutral crime, seeming inconsistent
with the focus on combating crimes against women and children. The sentencing process is
unclear, featuring heightened penalties and additional offences without a guiding principle. A
legislative emphasis on punishment should be complemented by a cohesive sentencing
strategy, emphasizing rehabilitative measures like reformative procedures, probation,
community service, and non-custodial sanctions. Lingering practices like solitary confinement
raise concerns regarding their alignment with evolving human rights standards. The existence
of overlapping offences between BNS and special statutes, coupled with vague terms, has the
potential to create confusion and litigation, straining the legal system and contributing to a rise
in pending cases.
References:
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By- Anshika Pradhan
LL.B. (Hons.)- 2nd Year, National Forensic Sciences University, Gandhinagar
