The Bharatiya Nyaya Sanhita: India’s New Legal Framework

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Index

  1. Introduction 
  2. Overview Of The New Bharatiya Nyaya Sanhita (BNS)
  3. Key Changes In The Bharatiya Nyaya Sanhita (BNS)
  4. Key Issues In The Bharatiya Nyaya Sanhita (BNS)
  5. Understanding The Age Of Criminal Responsibility
  6. Comparison Of Penalties: BNS vs Special Laws
  7. Characteristics Of The Bharatiya Nyaya Sanhita (BNS) 

A. Inclusion Of Organised Crime                And Terrorism In BNS

        B.  Murder By A Group On                              Identity Grounds

        C.  Offences Against Women

         D. Aspects Of Sedition Retained                    In BNS

         E. Solitary Confinement And.                       Community Service Concerns.

       8. Conclusion 

Introduction 

The Bharatiya Nyaya Sanhita (BNS) is a newly introduced act that replaces the Indian Penal Code (IPC). As society has evolved over time, the need for an updated legal framework became evident, leading to the creation of the BNS. While it retains many of the offences outlined in the IPC, it also incorporates several significant changes to address contemporary issues. Some key changes in the BNS include the introduction of community service as a punishment, the removal of sedition as a crime, and the establishment of new offences for actions that threaten India’s sovereignty, unity, and integrity. Terrorism is now defined to encompass acts intended to threaten the nation’s unity, integrity, and security, instill public fear, or disrupt public order. Organised crime, including activities such as kidnapping, extortion, and cyber-crime by crime syndicates, is explicitly criminalised. Even minor organised crimes are considered offences under the BNS. Additionally, murder committed by a group of five or more individuals based on identity markers such as caste, language, or personal belief is punishable by seven years to life imprisonment or death. These and other changes will be discussed in more detail further in the article.

Overview Of The New Bharatiya Nyaya Sanhita (BNS)

The Indian Penal Code (IPC) of 1860 has been the main law for criminal offences in India, covering crimes such as assault, murder, extortion, theft, unlawful assembly, rioting, and more. Over time, the IPC has been updated to include new crimes, modify existing ones, and adjust punishments. Courts have also de-criminalised certain acts like consensual same-sex relationships, adultery, and attempted suicide. Various states have made their own changes to the IPC regarding punishments for sexual offences, selling minors for prostitution, food and drug adulteration, and religious sacrilege. Law Commission reports have suggested changes related to crimes against women, food adulteration, and the death penalty.

The Bharatiya Nyaya Sanhita (BNS) replaces the IPC. It keeps most IPC provisions, adds new offences, removes those struck down by courts, and increases penalties for several crimes. The Standing Committee on Home Affairs reviewed the BNS.

Key Changes In The Bharatiya Nyaya Sanhita (BNS)

Offences Against the Body: The BNS retains IPC provisions on murder, abetment of suicide, assault, and grievous hurt. It adds new offences like organised crime, terrorism, and group-based murder or grievous hurt.

Sexual Offences Against Women: The BNS keeps IPC provisions on rape, voyeurism, stalking, and insulting a woman’s modesty. It raises the age for classifying a gangrape victim as a minor from 16 to 18. It also criminalises deceitful sexual intercourse and making false promises.

Sedition: The BNS removes sedition as an offence. Instead, it punishes actions like exciting secession, armed rebellion, subversive activities, separatist feelings, or endangering India’s sovereignty, unity, and integrity through words, signs, electronic communication, or financial means.

Terrorism: The BNS defines terrorism as acts intended to threaten the country’s unity, integrity, and security, intimidate the public, or disturb public order. Punishments include death or life imprisonment and a fine of Rs 10 lakh if it results in death, or imprisonment between five years and life and a fine of at least Rs 5 lakh.

Organised Crime: This includes kidnapping, extortion, contract killing, land grabbing, financial scams, and cybercrime by crime syndicates. Punishments are: (i) death or life imprisonment and a fine of Rs 10 lakh if it results in death, or (ii) imprisonment from five years to life and a fine of at least Rs 5 lakh.

Mob Lynching: The BNS makes murder or grievous hurt by five or more people on grounds like race, caste, sex, language, or personal belief a crime. Punishment ranges from a minimum of seven years imprisonment to life imprisonment or death.

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Supreme Court Rulings: The BNS aligns with Supreme Court decisions by removing adultery as a crime and adding life imprisonment as a penalty option (besides the death penalty) for murder or attempted murder by a life convict.

Key Issues In The Bharatiya Nyaya Sanhita (BNS)

Mental Illness and Criminal Responsibility: The IPC exempts acts by people of “unsound mind” from being offences. The BNS changes this term to “mental illness” as defined by the Mental Healthcare Act, 2017. This Act defines mental illness as a significant disorder of thinking or memory that impairs reality recognition, but excludes mental retardation or incomplete mind development. This might deny protection from trial to those with mental retardation. The CrPC was amended in 2008 to require a clinical test for unsoundness of mind or mental retardation for acquittal.

The MHA, 2017’s definition of mental illness includes alcohol and drug abuse. Thus, an alcoholic might claim mental illness as a defence for offences committed while intoxicated, even if they voluntarily consumed alcohol or drugs. This contradicts the IPC’s rule that only exempts acts under involuntary intoxication. The Standing Committee on Home Affairs (2023) recommended reverting to the term “unsound mind.”

Broad Definition of Terrorism: The BNS defines terrorism as acts intended to:

  1. Threaten the country’s unity, integrity, and security.
  2. Intimidate the public
  3. Disturb public order. 

Terrorist acts include using weapons or hazardous substances to cause death, danger, or fear, and destroying property or disrupting essential services. Including the intention to disturb public order as terrorism means a wide range of offences could be classified as terrorism, from armed insurrection and war to rioting and mob violence.

The Supreme Court (1960) defined public order as the absence of local-level disorder, distinguishing it from larger national upheavals like revolution or war that affect state security. The BNS also includes acts that intimidate the public as terrorism. The Standing Committee on Home Affairs (2023) recommended defining ‘intimidation’ to clarify what constitutes a terrorist act.

Petty Organised Crime: The BNS defines petty organised crime to include vehicle theft, pick-pocketing, selling public exam papers, and other organised crimes by gangs. For these to be considered petty organised crime, they must: 

  1. Cause a general feeling of insecurity among citizens 
  2. Be committed by organised criminal groups or gangs, including mobile organised crime groups. 

These offences are punishable by one to seven years of imprisonment and a fine. However, it is unclear what “general feelings of insecurity” means, and terms like ‘gang,’ ‘anchor points,’ and ‘mobile organised crime groups’ are not defined. The Standing Committee on Home Affairs (2023) recommended redrafting this provision.

Overlap Between BNS And Special Laws: When the IPC was created, it included all criminal offences. Over time, special laws have been introduced to address specific issues, and some offences have been removed from the BNS, like those related to weights and measures now covered by the Legal Metrology Act, 2009. However, many offences remain in the BNS. The BNS also introduces new offences like organised crime and terrorism, already addressed by special laws. This overlap can increase compliance burdens, costs, and result in varying penalties for the same offences. Removing such duplicated offences could eliminate inconsistencies and streamline regulations.

Understanding The Age Of Criminal Responsibility

The age of criminal responsibility is the minimum age at which a child can be prosecuted for an offence. Scientific advancements in understanding brain development have raised questions about holding children accountable for their actions. According to the Indian Penal Code (IPC), children under seven cannot be prosecuted. This age rises to 12 if the child cannot understand their actions’ nature and consequences. These provisions are retained in the BNS. However, this age is lower than in many other countries. In 2007, a UN Committee recommended that countries set the age above 12 years.

Different countries have varying ages of criminal responsibility. For example, in Germany, it is 14 years, while in England and Wales, it is 10 years. In Scotland, the age is 12 years.

The BNS sets higher penalties for offences against children, generally defining a child as someone under 18. The penalties for rape and gang rape vary depending on the victim’s age. For gang rape, the penalty changes if the victim is above or below 18. For rape, the penalties differ based on whether the victim is below 12, between 12 and 16, or older. This is inconsistent with the Protection of Children from Sexual Offences Act, 2012, which classifies anyone under 18 as a minor.

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Additionally, in the BNS, the age threshold for certain offences against children is not always 18. For instance, kidnapping a child with the intent to steal from a parent only applies to children under 10. Thus, the punishment for kidnapping an 11-year-old is the same as for kidnapping an adult. The BNS also retains the age of 21 for importing a foreign woman but sets the threshold at 18 for boys. The Standing Committee on Home Affairs (2023) has recommended defining a child as anyone under 18.

 

Comparison Of Penalties: BNS vs Special Laws

Adulteration of Food or Drink for Sale:

Under BNS, imprisonment up to 6 months, fine up to Rs 5,000, or both. In contrast, the Food Safety and Security Act, 2006, prescribes imprisonment up to life and a fine up to Rs 10 lakh for unsafe food.

Adulteration of Drugs and Sale of Adulterated Drugs:

For adulteration, BNS suggests imprisonment up to a year, fine up to Rs 5,000, or both. The Drugs and Cosmetics Act, 1940, sets more severe penalties, especially for causing harm.

Unlawful Compulsory Labour:

BNS outlines imprisonment up to one year, a fine, or both, while the Bonded Labour System (Abolition) Act, 1976, suggests imprisonment up to 3 years and a fine up to Rs 2,000.

Abandoning a Child:

BNS penalises abandonment of a child below 12 with up to 7 years’ imprisonment, fine, or both. The Juvenile Justice Act, 2015, suggests a lesser penalty for abandonment.

Rash Driving:

BNS proposes imprisonment up to 6 months, fine up to Rs 1,000, or both, whereas the Motor Vehicles Act, 1988, suggests stricter penalties for repeated offences.

Characteristics Of The Bharatiya Nyaya Sanhita 

A.Inclusion Of Organised Crime And Terrorism: Organised crime and terrorism are not currently covered under the IPC but are addressed by separate laws like the Unlawful Activities (Prevention) Act, 1967 (UAPA) for terrorism and state laws like the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) for organised crime. The BNS now includes offences related to these areas to fill a gap, especially in states without specific laws. However, this may lead to duplication in states already having such laws.

The BNSS and BSB, replacing the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872, do not outline separate criminal procedures for these new offences. Special laws for organised crime and terrorism have different procedures that may compromise certain safeguards for the accused, like bail conditions and admissibility of police confessions. Cases under UAPA are tried in Special Courts under the National Investigation Agency Act, 2008, while BNSS suggests trying terrorism cases in Sessions Courts, potentially creating inconsistency in investigation and trial procedures for similar offences.

B. Murder By A Group On Identity Grounds: The Bill sets a separate penalty for murders committed by five or more people based on specific grounds like race, caste, sex, place of birth, language, or personal belief. This offence is punishable by at least seven years in prison, up to life imprisonment or death, and a fine.

This offence has the same intent and consequences as murder, already covered by the IPC. However, the minimum penalty for group-based murder is lower than for regular murder, which is either death or life imprisonment. The reason for this difference in penalties is unclear. The Standing Committee on Home Affairs (2023) recommended removing the seven-year imprisonment option. The Bill mentions identity markers like caste and language but does not include religion.

C.  Offences Against Women: The BNS retains IPC provisions on rape but does not address several recommendations from the Justice Verma Committee (2013) and the Supreme Court on reforming offences against women.

Rape Definition (IPC s.375): It was recommended that rape should include any non-consensual sexual penetration, not just of the vagina, mouth, or anus. The exception for marital rape should also be removed. The BNS did not incorporate this change and retained the original provision in Clause 63.

Insulting Modesty of Women (IPC s.509): It was suggested to repeal this section and charge ‘eve-teasing’ under IPC s.354. The terminology ‘modesty of women’ should be removed from the IPC. The BNS did not adopt this recommendation and kept the original provision in Clause 78.

Assault with Intent to Disrobe (IPC s.354B): The penalty for this offence should be increased to imprisonment for at least five years, up to ten years. The BNS did not incorporate this change and retained the penalty as imprisonment for at least three years, up to seven years (Clause 75).

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Adultery (IPC s.497): This section was deemed to violate Articles 14 and 21 by creating gender-based distinctions and was recommended for removal, as it violates the right to privacy. The BNS omitted adultery but retained IPC s.498, which penalises a man for enticing another man’s wife to have intercourse with any person (Clause 83).

D. Aspects Of Sedition Retained: The IPC defines sedition as acts that incite hatred, contempt, or disaffection towards the government. The Supreme Court has put sedition on hold until further review. The BNS removes sedition but introduces penalties for: (i) exciting or attempting to excite secession, armed rebellion, or subversive activities, (ii) encouraging separatist activities, or (iii) endangering India’s sovereignty, unity, and integrity. These offences can involve words, signs, electronic communication, or financial means.

The new provision may be seen as retaining certain aspects of sedition and broadening the scope of activities considered threats to unity and integrity. Terms like ‘subversive activities’ are not defined, making it unclear what qualifies. In 1962, the Supreme Court limited sedition to acts intending or tending to create public disorder or incite violence. Despite not using the word sedition, the BNS refers to ‘seditious matters’ in clauses 150, 195, and 297.

E. Solitary Confinement And Community Service Concerns: The IPC allows solitary confinement for certain offences with rigorous imprisonment, like criminal conspiracy, sexual harassment, and kidnapping to murder. The BNS keeps these provisions. The Prisons Act, 1894, also permits solitary confinement, adopted by many state laws. However, these provisions clash with court rulings and expert advice. In 1979, the Supreme Court ruled that solitary confinement deprives prisoners of their rights under Article 21. In 1971, the Law Commission recommended removing solitary confinement, calling it outdated. In 1978, the Supreme Court agreed, stating it should be used only in exceptional cases.

The BNS introduces community service as a punishment for offences like theft of property worth less than Rs. 5,000, attempting suicide to restrain a public servant, and public intoxication causing annoyance. However, the BNS does not define what community service involves or how it will be managed. The Standing Committee on Home Affairs (2023) recommended clarifying the term and nature of community service.

IPC Sections 375 and 377: Section 375 of the IPC defines rape of a woman as an offence. Section 377 specifies “intercourse against the order of nature” as an offence, which the Supreme Court has limited to exclude consensual sex between adults. This means forced intercourse with an adult male and intercourse with an animal remain offences, while rape of children is covered under the POCSO Act, 2012.

The BNS does not retain Section 377, implying that rape of an adult man and intercourse with an animal will not be offences under any law. The Standing Committee on Home Affairs (2022) has recommended reintroducing this provision.

Drafting Issues

Acting while intoxicated. The IPC (Sec 85) exempted a person from responsibility if they were unknowingly or forcibly intoxicated and unable to distinguish right from wrong. The BNS changes “provided that” to “unless,” implying that a person who willingly got intoxicated would be exonerated.

Section 124A of the IPC and removes the word “sedition.” The explanation intended to clarify what does not constitute an offence is an incomplete sentence.

Obsolete References

There are outdated illustrations such as: (b) Z riding in a chariot, A lashes Z’s horses causing them to quicken their pace. This is described as using criminal force on Z without consent. Other examples involve palanquins and cannons, which are outdated and may need modern equivalents.

 

Conclusion 

The Bharatiya Nyaya Sanhita (BNS) in conclusion introduces significant changes to India’s criminal justice system, aiming to modernise and address contemporary issues. By updating the age of criminal responsibility, varying age thresholds for victims, and including organised crime and terrorism, the BNS seeks to fill legislative gaps and enhance legal consistency. However, these updates also bring challenges, such as potential duplication of laws and inconsistencies in penalties and procedures. Addressing these key issues and refining the provisions will be crucial for the effective implementation of the BNS, ensuring it serves justice while protecting individual rights and maintaining public safety.

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