BHARATIYA NYAYA SANHITA, 2023

BACKGROUND

The Indian Penal Code of 1860, the Code of Criminal Procedure of 1973, and the Indian Evidence Act of 1872 formed the bedrock of India’s criminal justice system. These statutes comprehensively defined offenses, prescribed punishments, outlined legal procedures, and regulated evidence admissibility. However, the passage of time rendered them partly obsolete, necessitating the enactment of three new criminal law acts to address emerging challenges like cybercrime and gender neutrality.

The Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023 which seek to repeal and replace the Indian Penal Code, 1806, Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 respectively were passed by the Lok Sabha on 20^th December, Rajya Sabha on 21^stDecember and the same attained the President’s assent on 25^th of December. These act aim to

• Replace the Colonial-era laws,
• Transform India’s Criminal Justice System,
• Protect the Rights of Citizens focusing on Justice over Punishment.

Let’s dive deep into the key provisions and changes bought by the Bharatiya Nyaya Sanhita, 2023

INTRODUCTION

The Bharatiya Nyaya Sanhita, 2023 (BNS) seeks to repeal and replace the Indian Penal Code, 1870. To begin with, the name itself highlights the objective behind the act. While its predecessor, the Indian Penal Code was more focused on the perpetrator and defining the punishments for the offences, the Bharatiya Nyaya Sanhita is more justice centric and focused towards the victims, widening the scope and inclusivity in offences such as those against children and women. The new act also has wider focus on gender neutrality and has made notable efforts in including several petty offence within the preview of the act.

KEY CHANGES

1. Community Service: A key change that has been brought in this act is the addition of community service as a form of punishment. This change offers three significant benefits: reducing prison overcrowding, allowing the community to benefit from tasks performed by those charged, and facilitating the rehabilitation of perpetrators by holding them accountable for their actions within the community.

1. Death caused by Negligence: Death caused by negligence was earlier punishable by imprisonment upto 2 years and fine, the same has been enhanced to be upto 5 years and upto 10 years, in case the person having caused such death escapes the scene and/ or fails to report to the police officer or magistrate within reasonable time. Moreover, section 106 of the BNS also provides for separate punishment for death cause by negligence by a registered medical practitioner while performing medical procedure as imprisonment upto 2 years and fine, which its predecessor failed to account for.

1. Organised crime: Section 111 of the BNS comprehensively defines Organized Crime as kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cybercrimes, trafficking, drugs etc. when committed by a group of individuals, whether as members of a crime syndicate or for such a syndicate. For this, the act proposes punishment of death, life, minimum three years and fine depending on offence so committed. Section 112 of the BNS further goes on to define petty organised crimes.

1. Terrorism: Terrorism has been recognised as an offence under section 113 of this act, having been done in India or in any other foreign country, with the intention to threaten the unity, integrity and security of India, to intimidate the general public or to disrupt the public order by the commission of such an act.

1. Sexual Intercourse with Deceit or False promise to marry: Section 69 of the BNS provides for punishing a person who by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape. The act proposes punishment for 10 years for the same.

1. Mob lynching: Section 103(2) of BNS Act has included a specific provision for mob lynching. The provision nowhere expressly states the term mob lynching, rather, it states that when a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground each member of such group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine.

1. Sedition: Another important change introduced is the repeal of sedition as an offence. Sedition was constituted as an offence to curb protests against the colonial government and later against the government of post independent India. On the other hand, acts that endanger the integrity, unity and sovereignty of India have been added to the list of offences under Section 150 of the BNS.

1. Removal of provision for ‘Unnatural offences’: The provision for ‘Unnatural Offences’ provided under section 377 of the Indian Penal Code, 1860 has been deleted while formulating the BNS in view of the Hon’ble Supreme Court’s judgement in the case of Navtej Singh Johar v. Union of India which decriminalised consensual sex among adults, including homosexual sex.

1. Removal of provision for ‘Adultery’: The decriminalisation of ‘Adultery’ by the Hon’ble Apex Court though its ruling in the case of Joseph Shine vs. Union of India, has resulted in the complete omission of the said provision in the BNS.

CRITICISMS AND CONCERNS

1. Absolute Repeal of Section 377: Although decriminalisation of unnatural offences concerning consenting adults was necessary in light of Article 21 and further a commendable measure taken by the Hon’ble Supreme Court of India back in 2017, but section 377 also included criminalization of offences such as bestiality and rape of men. The Bharatiya Nyaya Sanhita, 2023 falls silent in the last two aspects, the re-institution of which has been proposed by the Standing Committee on Home Affairs, 2023.
2. Ambiguity Regarding Community Service: The absence of an explanation regarding the nature of community service in the new act may result in a somewhat arbitrary application of the punishment. Without clear guidelines on what community service entails, there is a potential for inconsistency and lack of uniformity in its implementation. Clarity and specificity in defining the scope and nature of community service would be essential to ensure a fair and standardized application of this form of punishment under the new act.

CONCUSIONS

The Bharatiya Nyaya Sanhita, 2023 is a step in the right direction, with the initiative taken for inclusivity, broadening the definition of victims in child related offences, such as imposing life imprisonment or death penalty in case of gang rape of a minor woman and making offences such as stalking and outraging the modesty of a woman gender neutral with respect to the perpetrators. However, concerns regarding the clarity of community service implementation and absolute repeals of certain provisions linger. Despite criticisms, its strides toward inclusivity and gender neutrality mark a positive move in modernizing India’s legal framework. Refinements and clearer guidelines will be crucial for its effective and equitable implementation.

AUTHOR- SWATI AGRAWAL