INTRODUCTION
The Bharatiya Nyaya Sanhita (BNS), launched on August 11, 2023, and effective from July 1, 2024, aims to overhaul India’s criminal justice system by replacing the 1860 Indian Penal Code (IPC). Alongside the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya, which substitute the Criminal Procedure Code, 1973, and the Indian Evidence Act, 1872 respectively, the BNS embodies principles of “citizen first, dignity first, and justice first” in its drafting.
Compared to the IPC, which encompasses 23 Chapters with 511 Sections including all amendments, the BNS is streamlined, comprising 20 Chapters with 358 Sections. Notably, Chapter IV of the BNS is dedicated to provisions regarding abetment, criminal conspiracy, and attempts, and Chapter V includes the provisions for the prevention of sexual violence against women and children with several newly minted provisions.
CHAPTER IV
Section 45 of the BNS, which corresponds with Section 107 of IPC and provides for abetment of a thing. Section 46 of BNS corresponds with Section 108 of IPC and provides for the definition of an abettor of an offence as some who abets either the commission of an offence, or the commission of an act which would be an offence. Section 47 of BNS is identical with Section 108A of IPC in providing for abetment in India of offences outside India, in that abetting the commission of any act outside India, which would constitute as an offence in India, would constitute as abetment.
Section 48 of the BNS is a new addition to the existing provisions carried over from the IPC, and provides for abetment outside India for an offence in India. According to this provision, any person who encourages or assists in the commission of an act within India that would be considered a crime if done is that particular place, then would still be considered as abetment of offense under the Sanhita.
The Supreme Court in the case of Kartar Singh v. State of Punjab, recognized the comprehensive nature of the definition of ‘abet’ as provided under Section 107 of IPC. The case of Sanjay Singh Sengar v. State of Madhya Pradesh dealt with the question of whether instigation to commit suicide can be considered as abetment.
Section 49 of BNS continues along the lines of Section 109 of IPC in providing that the punishment of abetment if act abetted is committed in consequence, and where no express provision is made for its punishment. Section 50 of BNS provides for the punishment of abetment if person abetted does act with different intention from that of abettor, coinciding with Section 110 of IPC. Sections 51 to 60 of BNS are similarly identical with Sections 111 – 120 of IPC.
Section 61 of BNS provides for the definition and parties of criminal conspiracy, in consonance with Sections 120A and 120B of IPC. In the case of Kehar Singh & Ors. v. State (Delhi Administration), the Supreme Court held that the primary essential for an act to constitute as an offence of criminal conspiracy, is an agreement between two or persons to do such an illegal act. In Topandas v. State of Bombay, the Supreme Court held that only one person cannot be convicted for an offense under Section 120B of IPC, when the other alleged co-conspirators are acquitted.
Chapter IV of BNS concludes with outlining the punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment, as under Section 62 of BNS coinciding with Section 511 of IPC. In the case of Asgaralai Pradhania v. Emperor, an action would be considered as attempt only if it were of such magnitude to cause an offence if the attempt had resulted in the unlawful action.
CHAPTER V
Chapter V of the BNS deals with offences against women and children. The definition of rape, formerly stipulated under Section 375 of the IPC, has been relocated to Section 63 of the BNS. Despite this transition, the controversial marital rape exception, labelled as Exception 2, persists. However, there has been an alteration in the age requirement. The age of consent for this exception has been elevated from 15 years to ensuring that the wife is at least 18 years old.
Section 64 of the BNS outlines the penalties for rape. Clause (i) of the Section has undergone a significant alteration, wherein the terminology “incapable of giving consent” has been substituted for the previous criterion of “under 16 years of age”. This nuanced change reflects a broader understanding of consent dynamics, emphasizing the importance of capacity rather than solely age in determining the legality of sexual acts.
Furthermore, Section 65 of the BNS represents a notable consolidation within the legal framework. This section adeptly combines the distinct age categories of individuals under 12 and those under 16 into a singular provision. By merging these disparate age groups into a cohesive unit, the BNS aims to simplify the legal delineation and application of statutory rape laws. This consolidation not only streamlines the legal framework but also enhances clarity and consistency in addressing cases involving sexual offenses against minors.
Section 66 of BNS, coinciding with Section 376A of IPC, provides for punishment for causing death or resulting in persistent vegetative state of victim. As per Section 67, sexual intercourse of wife living separately without her consent shall be punishable, matching Section 376B. Section 68 of BNS correlates with Section 376C of IPC in providing against sexual intercourse by a person in authority.
Section 69 of the BNS is a new addition and provides against sexual intercourse by employing deceitful means, which is distinct from the existing IPC provisions. Section 493 of the IPC addresses the act of misleading a woman into believing she is legally wedded, thus prompting her to cohabit or engage in sexual relations. In contrast, the newly introduced Section 69 in the BNS appears to cover similar grounds but diverges in its application.
It delineates scenarios where deception leads to sexual relations but explicitly excludes actions that constitute rape. The primary distinction lies in the definition of deceptive practices and the scope of sexual exploitation not categorized as rape. This fresh provision underscores that if sexual relations occur with consent procured through deceit, they fall under Section 69 rather than being deemed rape under Section 63 of the BNS.
Section 70(1) of the BNS mirrors Section 376D of the IPC concerning the crime of gang rape. Meanwhile, Section 70(2) introduces a novel provision not present in the IPC, specifically addressing gang rape involving women under the age of 18. Previously, under Section 376DB of the IPC, the death penalty was prescribed for the gang rape of girls under 12 years old.
However, no such severe punishment was mandated for gang rape involving girls aged below 16 but above 12, as stipulated in Section 376DA. However, the BNS, through Section 70(2), rectifies this disparity by imposing the death penalty for gang rape offenses committed against women under 18 years of age. This amendment aligns with the broader effort to enhance the protection and safety of minors within the legal framework.
Section 71 of BNS coincides with Section 376E of IPC regarding repeat offenders. Similarly, Section 72 coincides with Section 228A regarding disclosure of identity of victim. Sections 73 to 77 of BNS match with Sections 354 to 354D of IPC. Section 78 coincides with Section 509 regarding word, gesture, act intended to insult modesty of a woman.
Section 79 matches with Section 304B regarding dowry death, section 80 with section 493 regarding cohabitation by deceitfully inducing belief of lawful marriage. Section 81 matches Sections 494 & 495 of IPC. Section 82 coincides with Section 496 regarding fraudulent marriage ceremony. Section 83 and 84 coincide with Sections 498 & 498A, while Section 85 is identical to Section 366 of IPC and deals with kidnapping, abducting, inducing woman to compel marriage.
Sections 86 to 90 of BNS correspond with Sections 312 to 316 of IPC regarding cause of miscarriage. Section 91 and 92 match with Sections 317 & 318. Section 93 is an original addition as it provides against the hiring, employing or engaging a child to commit an offence.
The provision extends to activities such as sexual exploitation or pornography, emphasizing its broad applicability. Section 94 coincides with Section 366A regarding procuration of child. Section 95 with Section 369, while sections 96 & 97 of BNS coincide with Sections 372 & 373 regarding child prostitution.
CONCLUSION
The BNS is unique in its addition of new provisions for the prevention of sexual violence against women and children. The BNS addresses crucial aspects of criminal law, from abetment to offenses against women and children. Notable changes include nuanced definitions of rape, provisions against deceitful sexual intercourse, and stringent measures against gang rape.
However, the laws continue to affirm that solely females can be victims and solely males can be perpetrators. While the Sanhita defines transgender individuals, it remains silent on their inclusion within the rape provisions.