INDIAN PENAL CODE (1860) V. BHARATIYA NYAYA SANHITA (2023) – A COMPARATIVE ANALYSIS
INTRODUCTION
The Bharatiya Nyaya Sanhita (BNS), introduced on August 11, 2023, and set to take effect from July 1, 2024, aims to revolutionize India’s criminal justice system by supplanting the dated 1860 Indian Penal Code (IPC). Accompanied by the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya, which replace the Criminal Procedure Code, 1973, and the Indian Evidence Act, 1872 respectively, the BNS embodies principles centred on prioritizing “citizen welfare, dignity, and justice” in its formulation.
In contrast to the IPC, which encompasses 23 Chapters housing 511 Sections along with all amendments, the BNS is designed to be more concise, comprising 20 Chapters housing 358 Sections. Notably, Chapter VI of the BNS deals with offences affecting the human body such as those affecting life, of hurt, wrongful restraint and wrongful confinement, criminal force and assault and kidnapping, abduction, slavery and forced labour. Chapter VII is dedicated to offences against the State, while Chapter VII deals with offences relating to the Army, Navy and Air Force.
CHAPTER VI
Section 98 of BNS coincides with the erstwhile IPC in Section 299 and provides for culpable homicide. Similarly, Sections 99 and 100 of BNS are identical with Sections 300 and 301 of IPC. Section 101 of BNS provides for the punishment for murder, correlating with Section 302 of IPC. Section 103(2) is a new addition to the existing provisions under the IPC as it provides for the punishment for mob lynching.
According to the BNS, mob lynching is described as the collective act of five or more individuals who, on the basis of race, caste, community, gender, birthplace, language, personal beliefs, or any other discriminatory motive, engage in the unlawful killing of another person. Each participant in such a group shall face severe penalties, including death, life imprisonment, or a minimum of seven years’ imprisonment, along with fines.
This is in line with the plea of the then CJI Dipak Misra, in Tehseen S. Ponawalla v. Union of India & Ors., calling for the legislature to draft and enforce a mob lynching as a separate punishable offence by way of legislation.
Section 106 of the BNS addresses acts of negligence that fall short of culpable homicide, with the updated legislation now raising the maximum punishment from two years to five years. Additionally, Section 106(2) introduces a novel provision dealing with cases where the perpetrator flees the scene without reporting the incident to either a police officer or magistrate. This amendment imposes a significantly harsher penalty, with offenders facing a maximum imprisonment term of ten years, coupled with fines.
Section 279 of the IPC deals with reckless and negligent driving. In the case of Pawan Kumar Sharma v. State of UP, guilt was determined under Sections 279, 304A, and 429 of the IPC. The Allahabad High Court determined that the individual could not be found guilty under Section 429 because there was no evident criminal intent or mens rea to cause harm or injury. However, the court upheld the convictions under Sections 279 and 304A, as the actions fulfilled the prerequisites outlined in these sections.
Under the previous law, attempted murder, as per IPC Section 307, has been revised under Section 109 of the new legislation. Now, anyone engaging in an act with the intention or knowledge that it could result in death, constituting murder, may face imprisonment for up to ten years and a fine. If harm is caused, the punishment could include life imprisonment or other penalties as provided. Additionally, the BNS introduces new provisions to address organized crimes, outlined in Section 111, and petty organized crimes, detailed in Section 112.
Section 113 of BNS, as a new addition, defines terrorist acts and outlines punishments for various related offenses, including conspiring, attempting, advocating, abetting, advising, inciting, or knowingly facilitating such acts. It also covers organizing camps to train terrorists, recruiting individuals for such acts, being a member of a related organization, harbouring or concealing terrorists, and possessing proceeds of such acts.
In relation to voluntarily causing grievous hurt, Section 117(3) introduces a provision specifically addressing causing permanent disability. Under Section 117(4), a new offense is outlined where a group of five or more individuals, acting together, causes grievous hurt to a person based on discriminatory grounds such as race, caste, community, sex, place of birth, language, personal belief, or any other similar basis. Each member of such a group is liable for the offense of causing grievous hurt.
The Chapter continues until Section 146 which coincides with Section 374 of IPC in recognizing unlawful compulsory labour.
CHAPTER VII
The primary aim of the BNS proposal is to abolish the sedition law, marking a pivotal aspect of the reform. Nonetheless, Section 150 of the BNS will preserve certain provisions from the existing sedition legislation to address acts endangering India’s sovereignty, unity, and integrity. Chapter VII primarily deals with offences against the State, extending from Sections 147 to 158.
The primary change in this Chapter, in comparison to IPC is with regards to the provisions on sedition. The previous sedition law, Section 124A of the IPC, has been replaced under the new legislation. Now, sedition falls under the offense of ‘treason,’ outlined in Section 152 of the BNS. This provision targets acts that endanger India’s sovereignty, unity, and integrity. It includes intentionally inciting secession, armed rebellion, or subversive activities through spoken or written words, signs, visible representation, electronic communication, or financial means. Offenders face imprisonment for life or up to seven years, along with fines.
The explanation to this section clarifies that expressing disapproval of government actions to seek lawful change, without inciting the activities mentioned, is not considered an offense under this Section.
In a groundbreaking decision in the case of S.G. Vombatkere v. Union of India, the Supreme Court issued a historic order to temporarily suspend the sedition law for the first time since India gained independence. This suspension remains in effect until the law undergoes re-examination or until further notice.
CHAPTER VIII
Chapter VIII deals with offences relating to the Army, Navy and Air Force. There are no major changes in this section. Sections 159 to 168 of BNS align with Sections 131 – 140. Section 159 delineates the offense of abetting mutiny or attempting to entice a soldier, sailor, or airman from their duties. This underscores the gravity of undermining military discipline and loyalty.
Section 160 extends this notion by addressing the abetment of mutiny when the mutiny actually occurs as a result of such incitement. It highlights the legal consequences not just for the mutineers but also for those who actively encourage or support such actions.
Section 161 deals with the abetment of assault by a soldier, sailor, or airman on their superior officer while the latter is executing their duties. This provision emphasizes the importance of maintaining respect for authority within military ranks. Building upon Section 161, Section 162 specifically addresses the abetment of such assaults when they are actually carried out. This underscores the seriousness of instigating violence within the military hierarchy.
Section 164 extends liability to those who harbor deserters, emphasizing the legal responsibility of individuals or entities complicit in aiding those who have abandoned their military duties. Section 166 pertains to the abetment of acts of insubordination by military personnel, emphasizing the importance of maintaining discipline and obedience within armed forces.
CONCLUSION
The BNS notably introduces stringent measures to combat contemporary challenges such as mob lynching and terrorism, aligning with judicial calls for legislative reform. By replacing outdated laws like sedition with more nuanced provisions, the BNS strives to uphold India’s sovereignty while safeguarding individual liberties. Furthermore, its meticulous provisions regarding offenses against the military ensure discipline and accountability within armed forces.