On August 11, 2023, Union Home Minister Amit Shah introduced three proposals in the Lok Sabha to revamp India’s criminal justice system. The Indian Penal Code (1860), the Indian Evidence Act (1872), and the Code of Criminal Procedure (1973) are to be replaced by the Bharatiya Nyaya Sanhita, Bharatiya Saksh Bill, and Bharatiya Nagarik Suraksha Sanhita, three new pieces of law.
The comparative analysis of The Indian Penal Code, 1860, and Bharatiya Nyaya Sanhita, 2023, will be the subject of this article’s analysis. Throughout the paper, we will refer to the IPC and BNS as appropriate legal codes.
Bharatiya Nyaya Sanhita (BNS), just introduced, has resulted in several notable advancements. The following four major categories best describe these changes:
a) Progressive Alterations
A fundamental change brought about by BNS is the inclusion of Section 69, which refers to sexual activity that takes place under the pretext of fake marriage or through other deceptive means. This offence carries a potential sentence of up to 10 years in prison, served concurrently with a fine. Terrorism and terrorist acts have been explicitly defined and acknowledged as crimes under Section 111 of BNS for the first time in Indian law. According to the BNS Bill’s section 111, “A person is said to have committed a terrorist act if he commits any act in India or any other country to threaten the unity, integrity, and security of India, to intimidate the general public or a segment thereof, or to disturb public order.”
Section 302 BNS introduces a new provision on ‘snatching,’ which imposes a penalty of up to three years imprisonment and/or the possibility of a fine.
Mob lynching is addressed explicitly under Section 101(2), each member of a group of five or more people who murder someone based on race, caste, community, sex, place of birth, language, personal belief, or any other ground is punishable by death, life in prison, or a term of imprisonment that cannot be less than seven years, as well as by a fine.
b) Contemporary Terminology
The BNS has updated its vocabulary by dropping the ancient and disparaging terms like “lunatic person” and “person of unsound mind” in favour of more sensitive phrases like “person with mental illness” or “having an intellectual disability.” Both Section 22 of the BNS (which corresponds to Section 84 of the IPC) and Section 28(b) of the BNS (which corresponds to Section 90(b) of the IPC) reflect this modification.
c) Women’s Equality
The importation of girls under 21 for unrestrained sexual contact with another person was formerly prohibited by law. To promote gender equality in criminal law, the updated Section 139 of BNS (equivalent to Section 366B of IPC) expands this prohibition to cover the importation of boys younger than 18 for similar illegal actions. In order to address criminal activities more thoroughly, BNS adds provisions for organized crime (Section 109) and minor organized crime or organized activities in general (Section 110).
In conclusion, the BNS has made several progressive reforms, updated its language to be more sensitive, promoted gender equality in several provisions, and more effectively attacked organized crime through its new rules. The Bharatiya Nyaya Sanhita (BNS) has enacted stronger laws addressing sexual misconduct, including the following significant modification, increased punishment for Rape, According to Section 64 of BNS, which corresponds to Section 376 of the Indian Penal Code (IPC), the sentence for rape has been increased from seven to ten years. Section 70 of the BNS, which corresponds to Section 376DB of the IPC, demands the death punishment for those responsible for gang-raping females younger than 18, shall be punished by rigorous imprisonment for a time of not less than twenty years, but which may extend to life, meaning that the offender would be imprisoned for the remainder of their natural lives, along with a fine.
New Provision In Bhartiya Nyaya Sanhita, 2023
The portion of BNS dealing with crimes against women and children has been updated to include Section 69 as a new provision. In conclusion, the BNS has implemented stricter sexual offence laws, including increased rape penalties, the application of the death penalty for gang rape of minors, the protection of victims’ identities, and the addition of a new provision addressing offences against women and children. The Indian Penal Code (IPC), Section 53, lists five different types of penalties that may be imposed on offenders:
- Death penalty
- Imprisonment for life.
- Life Imprisonment, There are two sorts of lifelong imprisonment:
a. Strict (requiring hard work)
b. Simple Property Forfeiture
- Forfeiture of property
However, Community Service is a new kind of punishment introduced by Section 4 of the Bharatiya Nyaya Sanhita (BNS), equal to Section 53 of the IPC. Simply put, community service is unpaid work that offenders may be obliged to do instead of imprisonment. BNS requires community service as a penalty for infractions of a lesser nature. This causes several specific adjustments in various parts, including:
a. Public Employees Who Violate Legal Obligations:
Section 200 of BNS, which corresponds to Section 168 of the IPC, states that a public employee who violates their legal obligation to refrain from engaging in trade may be punished with a fine, a simple imprisonment sentence of up to one year, both, or community service. Defamation offences are penalized by a short imprisonment sentence of up to two years, a fine, or both, or community service under Section 354 of BNS, comparable to Section 499 of IPC.
b. Community Service for Attempted Suicide:
According to BNS, community service could be used as a form of retribution in situations of attempted suicide. If a 24-hour imprisonment sentence is not imposed, community service may be the punishment for those accused of causing a public disturbance while under the influence of alcohol. In conclusion, BNS broadens the spectrum of penalties by allowing community service as a punishment, which may be used instead of incarceration for several minor violations.
c. Sedition law will be repealed and replaced:
The Bharatiya Nyaya Sanhita (BNS) proposal’s objective to repeal the sedition legislation is its most significant feature. However, Section 150 of the BNS will retain a few sections from the current sedition law intended to handle actions that jeopardize India’s sovereignty, unity, and integrity. According to Section 150 of the BNS, “Anyone who, purposefully or knowingly, through spoken or written words, signs, visible representations, electronic communication, financial means, or any other means, incites or attempts to incite secession, armed rebellion, subversive activities, or promotes separatist sentiments, thereby endangering the sovereignty, unity, or integrity of India, shall be subject to punishment.” This punishment can be from a seven-year prison sentence to life in prison, and the offender may also have to pay a fine.
Negative Consequences and Unresolved Problems:
Although many of the changes made by the BNS are widely seen as beneficial, these reforms bring about some serious issues, and others still need to be solved.
a. Uncertainty Regarding Community Service:
The BNS has resulted in some promising developments, one of which is the addition of community service as a sanction. However, the Bill needs to define what counts as community service. It is challenging to avoid future sentence disagreements because there is no precise definition. Unusual sorts of community service have occasionally been required. People were told, for instance, to give money to a gaushala (cow refuge), hand out copies of the Quran, or volunteer at a temple. It is also likely that further directives with a similar religious or potentially dangerous undertone remain, even though some of these directives were later overturned. As a result, it would be advantageous to prepare a list of potential community service projects or create rules for proper behaviour in this regard.
b. Progress Toward Gender Neutrality in Rape and Sexual Assault Cases
Progress toward gender neutrality in rape and sexual assault cases has been inadequate recognizing that people of all genders, including men, women, and transgender people, can commit and be victims of these crimes is a crucial component of gender neutrality in rape and sexual assault laws. A private member’s bill to gender-neutralize Indian criminal laws was introduced in 2019. However, the BNS continues to classify solely women as rape and sexual assault victims while designating men as perpetrators in the same circumstances, much like the Indian Penal Code (IPC).
A paradigm shift in India’s criminal justice system is anticipated due to the new proposed law, which will make it more equitable, effective, and responsive to the populace’s demands. The new code still needs to be implemented and is still in the draft stage. The suggested revisions to the Bhartiya Nyaya Sanhita represent an effort to modernize the Indian legal system to meet current issues better and increase its efficacy. Before the Parliament can finish and approve it, it must undergo extensive discussions and consultations with several stakeholders and experts.
This article is written and submitted by Charu Soni during her course of internship at B&B Associates LLP. Charu is a 3rd Year student BA LLB student at Symbiosis Law School, Pune.