Written by: SHAMBHVI NANDAN / BBA LLB (HONS.) / CHANDIGARH UNIVERSITY
To reform India’s criminal justice system, Union Home Minister Amit Shah introduced three bills in the Lok Sabha on August 11, 2023. The previous Indian Penal Code (1860), Indian Evidence Act (1872), and Code of Criminal Procedure (1973) will be replaced by the Bhartiya Nyaya Sanhita, Bharatiya Sakshya Adhiniyam, and Bhartiya Nagarik Suraksha Sanhita, respectively. The three proposed statutes have been forwarded to a Parliamentary Standing Committee, which will undertake in-depth deliberations and is anticipated to present its findings by the start of the next session of Parliament.
This article will analyze the statutory changes made to the Indian Penal Code, 1860, which will be renamed as the Bhartiya Nyaya Sanhita, 2023. In the following, the terms IPC and BNS will be used, respectively. By conducting a thorough comparison of sections from the IPC and BNS, the article’s scope would be constrained to significant changes made to Indian penal law.
BNS proposes to remove sedition as an offence, currently covered by Section 124A of the IPC, which includes acts that cause (or attempt to cause) any hatred, contempt, or disaffection towards the government; and is punished with imprisonment ranging from three years to lifetime. However, a concerningly similar provision is found in Clause 150 of the Bill, which punishes ‘Acts endangering sovereignty, unity and integrity of India’. Indeed, Clause 150 advances a few steps further and increases the scope of the provision by covering all acts which excite (or attempt to) ‘secession, armed rebellion, subversive activities, or feelings of separatist activities, or endangers sovereignty, unity and integrity of India.’ There is no accompanying explanation for what amounts to sovereignty, unity and integrity or endangerment thereof.
In addition to Clause 150, a new offence of ‘terrorist act’ has been introduced through Clause 111 of the Bill. Terrorist activities are not covered by the IPC. The new definition borrows heavily from the definition provided under Section 15 of the Unlawful Activities (Prevention) Act, 1967 or UAPA, in classifying any act that intends to threaten ‘the unity, integrity and security of India’ as a terrorist act. Clause 111 introduces new elements, considering acts that aim to ‘intimidate’ the public or ‘disturb public order’ as terrorist activities. Similarly, influencing any government official to do any act which may ‘destabilize social structures of the country’ is also a terrorist act under the clause. It may be noted that ‘social structures’ have not been defined in the Bill.
Similarly, the offence of ‘organized crime’ has been introduced in the BNS through Clause 109, when no such offence exists in any legislation outside of Gujarat and Maharashtra. It refers to any criminal activity committed by or on behalf of a group of three or more people, who act as members of a gang, mafia, or crime ring. Apart from this, helping any person in committing such a crime, or helping them hide after they have committed a crime, is also punishable with imprisonment ranging from five years to a lifetime. Even holding property derived from the commission of an organized crime, such as buying a house with money earned from committing an organized crime, is punishable with life imprisonment.
Another patently new offence has been introduced to target mob lynching or hate crimes. Although not defined by either description in the Bill, it has been made punishable in Clause 101(2) ‘punishment for murder’. When ‘a group of five or more persons’ together commits a murder based on the grounds of race, caste and ‘any other ground’ (religion is not specifically mentioned), they may be punished with imprisonment ranging from seven years to life, or with death. Punishment for ‘just’ murder is identical to Section 302 of IPC. Unlike Clause 101(2), ‘just’ murder is punishable only with life imprisonment or death.
Significant changes have also been brought about in the law on sexual violence. Sexual intercourse with a woman, where consent of the woman has been obtained deceitfully (such as based on a promise that the man does not intend to fulfil), is punishable under clause 69 of the Bill. The new offence is not described as rape in the Bill. Such cases were previously charged as ‘rape’ under Section 375 of the IPC. At the same time, Section 377 of the IPC which punished ‘Sexual intercourse against the order of nature’ has been expunged. The provision was earlier used to prosecute cases of consensual sexual intercourse between men until the same was prohibited by the Supreme Court in Navtej Johar vs Union of India (2019). The provision remains in the IPC, to prosecute the rape of men by other men. Thus, the deletion of Section 377 has created a lacuna in the Bill.
In contrast to this, however, the laws on kidnapping of children, trafficking, employing or procuring minors to commit offences (including pornography) have been made gender neutral. Thus, these laws will now protect children of both genders, while in the IPC, these provisions only protect minor girls. Similarly, the language in the offences of assault and voyeurism has been changed so that persons of any gender may be charged with these offences. Besides the creation/deletion of offences, punishments have also been changed en masse in the Bill. One of the notable changes is that under the Bill, a man may be sentenced to death for the rape of a girl younger than 12 years of age under Clause 65(2).
Furthermore, if a girl under the age of 18 is subjected to gang rape, the offender could face either life imprisonment or death penalty. Currently, the IPC only provides for death only in cases of gang rape where the girl was below 12 years. This proposition, however, does not alter the landscape significantly. The Protection of Children from Sexual Offences Act, 2012, provides for the punishment of death only in cases of ‘aggravated’ sexual assault against all children, which includes rape of a child below 12 years of age. A final change of note is that outdated terminology like ‘unsoundness of mind’ and ‘lunacy’ has been replaced with ‘mental illnesses’ instead.
A comparative exercise for the Bills was undertaken by Project 39A, a criminal justice organization at the National Law University, Delhi. They have prepared Bharatiya Nyaya Sanhita Bill, 2023 & Indian Penal Code, 1860: An Annotated Comparison, an elucidated version of the BNS, which highlights the changes in the text of the Bill and specifies the corresponding provision from the IPC.
Alteration In the Structure
Inclusive of amendments and additions, IPC is subdivided into 26 chapters that comprise 576 Sections. In contrast to the IPC’s convoluted structure, the BNS has an improved structure having 19 chapters and 356 Sections. In addition to proposing revisions to 175 existing provisions and the addition of 8 new sections, BNS also recommends the deletion of 22 IPC provisions.
- Sexual intercourse by deceitful means or false promise to marry will be considered a crime under Section 69 of BNS. It will be punishable with simple or rigorous imprisonment for up to 10 years, and a fine.
- Terrorism and Terrorist Act have been defined under law for the first time and regarded as an offence in Section 111 of BNS.
- A new Provision on ‘Snatching’ under Section 302 has been introduced. It says that whoever commits snatching shall be punished with imprisonment of up to three years and shall also be liable to a fine.
- Section 101(2): A separate provision of mob lynching provides for seven years imprisonment, life imprisonment, and death sentence as a punishment.
- The BNS has undergone significant changes, particularly in the replacement of archaic and insulting phrases such as “lunatic person” and “person of unsound mind.” All these references have been labelled with more delicate language, such as “person with mental illness” or “having intellectual disability.” Section 22 of the BNS, which corresponds to Section 84 of the IPC, reflects this modification. A similar modification has been made to Section 28(b) of the BNS, which corresponds to Section 90(b) of the IPC.
- Earlier, importing girls under the age of 21 years for illicit intercourse with another person was an offence. Now the revised Section 139 of BNS which corresponds to Section 366B of IPC specifies that importing boys under the age of 18 years for illicit intercourse with another person will also be considered as an offence. This has the potential to positively contribute to achieving equality in criminal law.
- Introduction of organized crime and petty organized crime or organized in general, i.e., Section 109 and 110 of BNS, respectively.
Stricter laws on Sexual Offences
- Punishment for rape has been increased from seven years to ten years as given in Section 64 of BNS which corresponds to Section 376 of IPC.
- Earlier, Section 376 of IPC provided “Whoever commits rape shall be punished with imprisonment of either description”. Now, Section 64 of BNS explicitly states that “Whoever commits rape shall be punished with rigorous imprisonment.”
- Death Penalty for gang rape of women below 18 years of age as per Section 70 of BNS, which corresponds to Section 376DB of IPC.
- Additionally, a new law protecting the identities of sexual assault victims has been introduced which can be seen in Section 72 of BNS.
- A new provision i.e., Section 69 has been added to BNS in the Chapter governing offences against women and children.
Community Service as a punishment
- Section 53 of the IPC explicitly provides five kinds of punishments for which offenders are liable
- Imprisonment for life
- Imprisonment, which is of two descriptions, namely:
- Rigorous, that is, with hard labor
- Forfeiture of Property
- Section 4 of BNS, corresponding to Section 53 of IPC, provides Community service as a punishment in addition to five punishments.
- Community service, to put it briefly, is unpaid labor that offenders may be required to perform as a form of punishment rather than being imprisoned.
- The BNS calls for community service as a punishment for petty offences. Following this, some section-by-section changes include:
- A public servant who violates their legal obligation to refrain from conducting trade will be subjected to simple imprisonment for up to a year, a fine, or both, or community service as given in Section 200 of BNS, which corresponds to Section 168 of IPC.
- Defamation is an offence that carries a simple sentence of up to two years in jail, a fine, both, or community service as per Section 354 of BNS, which corresponds to Section 499 of IPC.
- Community Service as a punishment in Attempt to Suicide.
- If not given a 24-hour prison sentence, people accused of making a public nuisance while under the influence of alcohol may be required to perform community service.
Sedition law will be repealed and replaced
The proposal in the BNS that “Sedition law will be completely repealed” stands out the most. Provisions under the sedition law – proposed to be scrapped will be retained in Section 150 for acts of endangering the sovereignty, unity and integrity of India.
Section 150 of BNS provides, “Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.
Negative Changes and Loopholes
While most of the modifications in BNS may be seen as beneficial, some of the reforms have also given rise to serious issues while some are still untouched by the BNS.
- No Definition of Community Service: As mentioned above, one of the positive changes in BNS is the introduction of Community service as a punishment. But what the Bill fails to do, though, is define what community service entails. Without such a prescription, it is impossible to rule out the potential of sentencing disputes. In a few isolated instances, strange forms of community service were mandated. For instance, a directive to donate money to a gaushala, distribute copies of the Quran, or do temple service. Even though some of these directives were later revoked, it is still possible that there were more directives with similar religious overtones or that promoted patriarchal (or other harmful) standards. Thus, a list of possible community service activities or guidelines for conduct may be useful.
- No proper step towards Gender Neutrality in Rape and Sexual Assault: Gender neutrality in rape and sexual assault legislation refers to the concept that the criminal code should recognize that men, women, and transgender people can both commit and be victims of rape. In 2019, the Criminal Law Amendment Bill was introduced as a private member’s bill which suggested major changes, to make Indian criminal laws gender neutral. But BNS like IPC recognizes only women as victims of rape and sexual assault while men as the perpetrators.
- No major change in Sedition Law: The Proposed Section 150 maintains the criminalization of any act that “excites or attempts to excite” secessionist activities or “encourages feelings of separatist activities” without making incitement to violence or disruption of public order a prerequisite to bringing charges. Almost everything that Section 124A of the IPC now classifies as sedition is covered under Section 150, including speeches, newspaper articles, books, and plays.
Without any doubt, it can be stated that the substantive criminal law, i.e., the IPC, has undergone various changes in terms of content as well as in the arrangement of the sections of the BNS.
Most of the modifications are generally well-intentioned and much needed. This article classified them into four headings:
- Progressive Changes
- Stricter laws on Sexual Offences
- Community service as a punishment
- Sedition law will be repealed and replaced
On the other hand, BNS contains a few flaws. This article classified them into three headings:
- No definition of Community Services
- No proper step towards Gender Neutrality in Rape and Sexual Assault
- No major change in Sedition law