Bharatiya Nyaya Sanhita

Source-This post on Bharatiya Nyaya Sanhita has been created based on the article “Revisit these sections of the Bharatiya Nyaya Sanhita” published in “The Hindu” on 3 April 2024.

UPSC Syllabus– GS Paper-2-Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure.

Context– The central government has notified July 1 to be the day on which the recently enacted three criminal laws will come into effect. However, Section 106(2) of the Bharatiya Nyaya Sanhita (BNS), 2023 has been put on hold due to opposition by All India Motor Transport Congress.

What are some sections of Bharatiya Nyaya Sanhita that require revision?

Apart from Section 106(2), there is a need to reconsider a few more provisions of the BNS. These are-

1) Section 112– This defines petty organized crime.

2) Section 303(2)-This defines theft.

3) Section 143-This is related to human trafficking.

Why is the reconsideration of certain provisions required?

1) Section 106-

A) The increase in sentence from 5 to 10 years of imprisonment for just fleeing the scene without reporting to the police or a magistrate soon after the accident is bit disproportionate

B) This clause violates the fundamental right of prohibition against self-incrimination which is enshrined under Article 20(3) of the constitution.
Further, in Nandini Satpathy vs P.L. Dani, the Supreme Court has widened the scope of Article 20(3) and held that the accused must not be compelled to give testimony because it amounts to procurement of evidence by psychic torture, overbearing and intimidatory methods. Thus, disclosure of culpability by informing the police or a magistrate under Section 106 due to fear of enhanced punishment may not qualify the test of constitutionality

2) Section 112–

Offences like unauthorized selling of tickets and selling of public examination question papers are not properly defined. These offences are not linked with any special Act.
Further, the range of ‘any other similar criminal acts’ is unspecified in this section, and this makes it more indefinite and open-ended. The Supreme Court in Shreya Singhal vs Union of India (2015) struck down 66A of the Information Technology Act, 2000 because it found the expression “grossly offensive” used in the Section to be open-ended, undefined and vague.

3) Section 303-
Provision-In cases of theft where the value of the stolen property is less than 5000, and a person is convicted for the first time and if the person returns of the value of property or restoration of the stolen property then he will be punished with community service. The First Schedule to the Bhartiya Nagarik Suraksha Sanhita (BNSS) categorizes the offence under this category as a non-cognizable offence.

Issue–
A) While the value of ₹5,000 may not impact the pocket of a rich person, but it is a huge sum for a daily wage earner. Since it is a non-cognizable offence, police may refuse to file a first information report.
B) Property offenders could not be put under police surveillance if property offences are not registered.

4) Section 143- Sub-sections (6) and (7) of Section 143 of the BNS which punish trafficking of a child and trafficking of a person by a public servant, or a police officer respectively do not provide any discretion to the judiciary to award punishment.
The Supreme Court in Mithu vs State of Punjab (1983) held that any law which does not give discretion to the judiciary is not just, fair, and reasonable within the meaning of Article 21 of the Constitution and hence unconstitutional.

Question for practice

Why is the reconsideration of certain provisions under Bharatiya Nyaya Sanhita (BNS), 2023 required?