The Government of India, in August 2023, introduced the Bharatiya Nyaya Sanhita (BNS) Bill as a replacement for the Indian Penal Code (IPC). This bill was assessed by the Standing Committee on Home Affairs, which also gave some recommendations on it, after which the bill was withdrawn. On December 12, 2023, the government reintroduced the Bharatiya Nyaya (Second) Sanhita (BNS2), 2023 in the Lok Sabha after including the suggestions made by the standing committee. It was passed in the Lok Sabha on December 20, 2023. Thereafter, it was passed in the Rajya Sabha on December 21, 2023. Finally, it got the presidential assent on December 25, 2023, and became an act.
Broadly speaking, most provisions of the IPC have been retained in this act along with removing those offences that have been cancelled by courts. Besides, several new offences have also been introduced.
The Indian Penal Code
The Indian Penal Code (IPC) is the chief law regarding criminal offences that applies to our country.
In 1834, Lord Thomas Babington Macaulay became the chairman of the first Indian Law Commission, which was to analyse the power and rules of the then existing courts and their jurisdiction. Besides, the commission also had to analyse the laws in force and the police establishments in the country. Having completed the tasks assigned, the commission recommended several enactments to the government. Out of those recommendations, the major one was regarding the IPC.
Therefore, in 1860, the IPC was put into effect. This code is still enacted in the country though with certain amendments made to it every once in a while.
Some offences covered in this code (law) are:
- the offences affecting the human body, including assault and murder;
- the offences affecting property, including theft and extortion;
- the offences affecting public order, including riots and illegal assembly;
- the offences affecting public health, decency, safety, religion, and morality;
- defamation cases; and
- the offences carried out against the State.
Why the Need of this Act
With changing times and social scenarios, it was deemed necessary to reconsider the current criminal laws so that law and order could be reinforced in the country. Besides, legal procedures needed to be simplified so that the common man could have ease of living. The government also felt the need to modify the current laws so that they are appropriate to the contemporary situation and the common man could get justice quickly. Thus, acting upon the advice of different stakeholders, and taking into account the contemporary requirements and desires of the people, this act was enacted.
Therefore, the Bharatiya Nyaya Sanhita, 2023 is aimed at achieving the following objectives:
The act prioritises the offences against women, children, and the State. It was further recommended that ‘community service’ be added as a punishment for small offences. It makes several offences ‘gender neutral’. Besides, it contains new offences of organised crime and terrorist acts along with restrictive punishments so that the issue of organised crime and terrorist activities can be effectively dealt with. The act also contains many new penalties related to different offences.
Key Features of the Act
- Offences conducted against the human body Under the IPC, murder, assault, encouraging someone to commit suicide, causing severe hurt, and other such acts are considered criminal acts. This act retained these provisions besides including new offences, such as terrorism, organised crime, and severe hurt or murder by a group of people on some specific grounds.
- Sexual offences conducted against women According to the IPC, rape, stalking, voyeurism, hurting the modesty of a woman, and other such acts are all considered criminal acts. In this act, these provisions have been retained along with adding a few other provisions. For instance, in the case of gang rape, the threshold for the victim to be categorised under ‘major’ has been increased by two years, i.e., from 16 to 18 years. Further, carnal intercourse with a woman using deceit or making false promises has been criminalised in this act.
- Sedition This act has eradicated the offence of sedition, and in its place, criminalised the following acts: (i) instigating or trying to instigate armed rebellion, secession, and subversive acts; (ii) provoking the feelings of separatist activities; (iii) imposing danger on the sovereignty, unity, and integrity of the country. This act further states that electronic communication, verbal communication, or communicating via sign language, or using financial means can be considered a part of these offences.
- Terrorism The following acts have been classified as terrorism: (i) jeopardising the security, integrity, and unity as well as economic security of the country; (ii) causing fear in all the citizens or any section of citizens of India. If any person tries or commits terrorism that leads to the death of a person, he/she will be sentenced to death or lifetime imprisonment and a fine. Moreover, if any person commits terrorism, he/she will be sentenced to imprisonment between five years and lifetime along with a fine.
- Organised crime Organised crime refers to the offences done in lieu of a crime syndicate. These offences include seizing land, kidnapping, financial scams, contract killing, extortion, cybercrime, etc. If anybody tries or commits organised crime that leads to the death of a person, he/she will be sentenced to death or lifetime imprisonment and a fine of up to Rs 10 lakh. Moreover, if anybody tries or commits organised crime, he/she will be sentenced to imprisonment between five years and lifetime along with a minimum fine of Rs 5 lakh.
- Mob lynching This act criminalises the murder or severe hurt caused by five or more people on certain grounds, such as caste, race, sex, language, or personal belief. The people performing this criminal act will be subject to either lifetime imprisonment or death as punishment.
- Rulings of the Supreme Court This act has complied with some judgments of the Supreme Court, such as omission of adultery as an offence, addition of lifetime imprisonment, along with the death penalty, to the penalties for committing murder or trying to murder by a life convict.
Did You Know
There is 358 clauses in the Bharatiya Nyaya Sanhita, 2023 in place of 511 sections as in the earlier IPC.
Issues and Critical Analysis
Some of the major issues related to this act are mentioned below along with their critical analyses.
- Higher minimum age of criminal responsibility The age of criminal responsibility is the lowest age of a child at which the courts can take action against him/her for an offence. Based on a recent study regarding the relationship between brain development and adolescent behaviour, questions as to how far children should be held responsible for their actions have been raised.
According to the IPC, any act committed by a child below seven years of age would not be considered as an offence. However, if it is found that the child does not have the maturity to comprehend the nature and consequences of his conduct, this age of criminal responsibility is raised to 12 years. These provisions have been retained in this act. Notably, in other countries, the age of criminal responsibility is higher than that in India. For example, the age of criminal responsibility in Germany is 14 years. As per the recommendations of a UN Committee in 2007, states were required to fix this age to beyond 12 years. - Diverse minimum age of the victim for similar offences against children In this act, the provisions of higher penalties are mentioned for offences against children. There is a difference between the penalty for rape and gang rape of women and children. In the case of gang rape, the penalty is determined on the basis of the age of victim, whether it is above or below 18 years. But in the case of rape, the penalty is determined on the basis of the age of victim, whether it is below 12 years, or between 12 and 16, or above 16 years. This clause is not in line with the Protection of Children from Sexual Offences (POCSO) Act, 2012, which regards all people under 18 as minors.
Further, as per this act, the offence of kidnapping a child is applicable only to a child below 10 years. That is, the offence of kidnapping an 11-year-old would be considered the same as kidnapping an adult. So, the punishment will be the same. Besides, in the case of the offence of importing a foreign woman, the age limit is 21 years under the IPC. This has been retained in this act; however, in case of importing a foreign man, this act sets the age limit to 18 years.
As per the recommendations of the Standing Committee on Home Affairs (2023), a child is defined as an individual under 18 years of age. - Overlapping of offences under this act and other special laws The IPC included all major criminal offences; however, to deal with specific subjects and related offences, special laws have been implemented with time. This act does not include some of the offences covered under IPC. However, other offences have been retained, leading to the duplication of laws, resulting in varying penalties for the same offences.
These offences should be deleted from this act so that duplication, several penalties, and possible inconsistencies can be removed. - Different penalty for the same offence for a member of a gang and for an individual If petty organised crime, such as pick-pocketing, vehicle theft, and selling examination papers, is committed by a member of a gang, he/she may be sentenced to imprisonment between one and seven years. However, for the same crime committed by an individual, he/she may be sentenced to imprisonment of up to three years.
- Offences against women The provisions regarding rape as mentioned in the IPC have been retained in this act. However, the Justice Verma Committee (2013) and the Supreme Court have proposed several reforms related to offences against women, which have not been dealt with in this act.
- Retention of a few aspects of sedition This act retains only a few aspects of the offence of sedition mentioned in the IPC. However, the range of acts that may threaten the unity and integrity of the country has been widened. Nevertheless, several terms are not clearly defined, such as subversive acts. Besides, there is ambiguity regarding which activities will fulfil this criterion.
In 1962, the Supreme Court restricted the sedition acts to include only the acts that intend or tend to cause public disorder or instigate violence. - Violation of fundamental rights through solitary confinement Under the IPC, solitary confinement is permitted for offences such as kidnapping or abducting to murder, criminal conspiracy, and sexual harassment. These provisions have been retained in this act. However, these provisions do not comply with court rulings and expert recommendations. In 1971, the Law Commission had proposed that solitary confinement should be deleted from the IPC, as it is not in line with modern thinking. In 1979, the Supreme Court considered this recommendation and stated that solitary confinement deprives prisoners of their right to life and liberty under Article 21; so, it should be implemented only in exceptional circumstances.
- Vague scope of community service Though community service is added as a punishment in this act, it is not clearly mentioned which community service will include and how it will be managed. It has been recommended by the Standing Committee on Home Affairs (2023) that the term and nature of ‘community service must be defined’.
Conclusion
The enactment of the Bharatiya Nyaya Sanhita, 2023 along with two other acts—the Bharatiya Nagrik Suraksha Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023—is being seen as a turning point in the history of our country. These laws focus on public service and welfare and have been introduced to safeguard the interests of the poor, marginalised, and vulnerable sections of society along with strictly checking terrorism, organised crime, and other offences.
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